Passenger Track Access Contract: Schedule 4:  Rules of the Route, Rules of the Plan and Restrictions of Use


This Page was last updated on 07 February 2011


Schedule 4 Rules of the Route, Rules of the Plan and Restrictions of Use  



Date of Hearing

Points made within Determination  (Verbatim extracts given in Italics, or between quotes)

General Principle


September 2011

“[TOC}” raised the issue of the adequacy of the Schedule 4 revenue compensation available to it for its disrupted services, in relation to its assumed actual revenue loss resulting from overall suppression of passenger numbers rather than just directly affected trains, with the assertion …. that its potential revenue loss if the proposed possessions are taken could exceed its Schedule 4 compensation.  …. it seems that this cannot be a proper consideration for a Panel such as this to take into account in evaluating the proposed timing of possessions.  As far as the Panel is concerned, the level of Schedule 4 compensation, including the extent (if any) to which it takes account of estimated levels of disaffected would-be passengers, must be regarded as a 'given' determined by policy and consultation, and ultimately by ORR.”  [TTP376/377. para. 8.3.5]

Part 3


November 2003

6.       The Committee therefore determined that:

6.1.     STS’ insistence that Network Rail should provide all necessary Access Planning Resources to comply with the T-12 standard for Informed Traveller, even in respect of Major Project notice works, is reasonable;

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

6.3.     the Committee requires Network Rail to monitor actual compliance with T-12 timescales in respect of all the works covered by this Major Project notice;   and that

6.4.     provided that Network Rail can demonstrate that it has genuinely deployed best endeavours to achieve T-12 compliance, failure wholly to achieve T-12, shall not be a sufficient reason to require works or a blockade to be cancelled.


Part 3  paragraph 2.6


“Major Project” and “Significant Restriction of Use”


December 2003

The concept of “Major Project was dropped from Part D with the advent of the Yellow pages, and the introduction of the “Possession Strategy Notice” procedure.   However, the concept of the Major Project is still referred to in Schedule 4 of some Passenger Track Access Contracts, and therefore the definition, as given in the October 2005 Pink Pages retains force ( see note 3 of the Yellow Pages dated 12 January 2007).

As defined in the Pink pages     “Major Project”     “means any engineering, maintenance or renewal project which requires a possession or series of possessions of one or more sections of track extending over:

(a)   a period of more than one year”: or

(b)     a period which contains two or more Passenger Change Dates”


This was tested in NV53, where the Committee concluded as follows


9.       The Committee then directed its attention to the issue of what, in this context, is a Major Project, and whether the revised Forth Bridge repainting fell within the scope of the definition of a Major Project.   The Committee took into account the following factors:

9.1.   the implication of the discrete category “Major Project” is that it is something that can be differentiated from the normal run of renewal and maintenance activity that is carried out, year in, year out, subject to the terms of the “applicable Rules of the Route/ Rules of the Plan”

9.2.    the definition brings together a number of discrete elements, all of which would appear to require to be met, for there to be an obligation on Network Rail to categorise and manage an activity as a “Major Project”.   These are:

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

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

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

9.2.4.      the activity relates to a defined “project”.

9.3.   “project  is not a defined term in either the Track Access Conditions, or the Railways Act, and therefore must be construed in line with common English usage.   In this regard a project is something not “run of the mill”, but is non-repetitive, is undertaken to achieve a specific objective, implies the commitment of identified resources, and, probably, extends over a sustained period of time.

10.   The Committee’s rationale was that the introduction of a changed method of painting for the Forth Bridge involved the commitment of specifically contracted resources, over a period of seven years, during the whole course of which there was a potential requirement for possessions, all to achieve the finite goal that future maintenance would be on a different system.   It was the view of the Committee, therefore, that this specific activity did fall logically within the scope of the definition of a Major Project.   It followed therefore from that that SRR was entitled to require Network Rail to administer the specific activity as a Major Project and in accordance with Track Access Condition Part D2.3 {D2.2}.   In taking that view the Committee did so in the context of this particular and unique set of facts.   It was not in any way moving in a direction whereby other more usual types of maintenance could be categorised as Major Projects.”   {NV53]


Part 3  paragraph 2.6


“Major Project” and “Significant Restriction of Use”













ORR Determination of appeal by FCC against ADP21

November 2006











July 2007

This determination sought to clarify which Network Rail Works should be deemed to be a Major Project for the purposes of  administering a significant programme of Restrictions of Use, and in consequence, what level of compensation payment should be made to a Train Operator.   The Determination required to reach its conclusions taking account of the fact that the relevant provisions of Network Code Part D relating to Major Projects had been deleted, that a new concept, the Possession Strategy Notice had ben introduced in its stead, and that vthe “Major Project” now only figured (in the Yellow Pages of the Network Code) as a footnote.


The Panel’s determination was taken to appeal by the Train Operator;   central to that appeal was a consideration of the definition of  “Major Project”.  The ORR’s conclusions on that point were as follows


47. “Whether or not a particular set of works constitutes a “Major Project” for the purpose of the Code and a TAA requires an objective assessment, which is independent of the parties’ identity, subjective views, knowledge or intentions. Once the substantive requirements for a “Major Project” have been settled as a matter of law, the fulfilment of them in a given case is a question of fact that must be determined in the light of the individual circumstances of the case.”


54.   “ORR therefore considers that a programme of works will constitute a “Major Project”, for the purposes of Condition D.2.2 of the Code and Schedule 4 of the TAA, where it fulfils the following four cumulative conditions:

a)                          the works constitute a “project”, in the sense of a discrete set of co‑ordinated activities, with definite starting and finishing points.  The activities are undertaken by an organisation to meet specific objectives within defined time, cost and performance parameters and are “unique” in the sense that they are of unusual nature and scope and/or are coordinated and implemented in an unusual way; and

b)                          the works involve engineering, maintenance or renewal activities; and

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

d)                          the works last for more than one year or for a period which contains two or more Passenger Change Dates.


ORR’s conclusion on the facts of the present case

55.   In the present case, conditions (b), (c) and (d) of the test summarised above are clearly established on the facts. In relation to condition (a) the Rewiring Works clearly involve a set of co-ordinated activities undertaken by NR to meet the specific objective of renewing the overhead line equipment on the ECML within defined, time, cost and performance parameters.  The possessions, which cover one or more sections of track, were planned to take place between May 2005 and December 2007 – a period of more than one year.  The debate between the parties therefore centres on whether the Rewiring Works are of unusual nature and scope and/or are coordinated and implemented in an unusual way.

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

a)                          FCC gave evidence, which was not contested by NR, that the Rewiring Works replace a large proportion of the overhead line equipment, including its support construction, which had not been wholly renewed or replaced for over 30 years. Even NR, in its letter of 11 May 2005, recognised that the nature of the works was “unique”. The nature of the works therefore extends beyond ordinary or “run-of the mill” maintenance or ad hoc renewals;

b)                          the Rewiring Works have affected the whole of the operational route covering a substantial length of track[1]. They have resulted in complete closure of the ECML from Saturday until Monday on more than 20 occasions and on Sunday morning on 48 occasions in less than 2 years. On numerous other occasions, there has been a severely restricted service over prolonged periods at weekends and on bank holidays.  The scope of the Rewiring Works is therefore unusual; and


c)                          NR decided to “package” a number of renewal works together so as to coordinate the necessary possessions in a timely and cost‑effective manner and to minimise the disruption to passengers and end-users of the railway.  The way in which NR decided to implement the works meant that it required more concentrated possessions than it would otherwise have done.  The way in which the works were coordinated and/or implemented is therefore unusual.


57.   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.








Network Code Section


Date of Hearing

Points made within Determination  (Verbatim extracts given in Italics, or between quotes)

Part 3 Paragraph 4

Notification Factors



ADP20 Interim




ORR determination on Appeal

January 2007





October 2007

TheORR’s  findings on appeal in this case are best understood by treating them as individual comments ( some upholding , and some qualifying),on  the findings of the Panel)

56.10. “the column C Notification Factor applies only where the facts of the case fit the wording of paragraph 4.1 of Schedule 4.   If they do not (for example, because the ROU was not reflected in the First Working Timetable, and this was not because of a request by FGW that it should not be) Network Rail cannot claim the benefit of column C whatever FGW’s shortcomings may have been;                “ORR upholds the Panel's finding at paragraph 56.10 of the Interim Determination”

56.11. the use of the word “because” in paragraphs 4.1(b)(iii) and 4.2(b)(ii) of Schedule 4 to the Track Access Contract means that the column C (or as the case may be D) NF applies only where Network Rail’s failure to upload to TSDB by T-12 has been caused by FGW’s failure to submit a Revised Bid by T-18 (taking account of all that is said in this determination).   A “but for” test should be applied.   This test would not be satisfied if it appeared that the true cause was a complete failure of Network Rail’s systems.   It would be unlikely to be satisfied if what FGW had prepared and intended as a Revised Bid failed to qualify as such only because it was submitted a day late.             ORR upholds the Panel's finding at paragraph 56.11 of the Interim Determination in that it agrees that the word "because" in paragraphs 4.1 (b)(iii) and 4.2(b)(ii) of Part 3 of Schedule 4 pt the T AA means there must be a causal connection between the train operator's failure to submit a Revised Bid in accordance with Condition 04.8.3, and the fact that the ROU was not reflected in the Working Timetable on the relevant day. ORR rejects the Panel's finding that the appropriate test for causation is the "but for" test and finds that the correct test is whether the failure to submit a Revised Bid is a substantial cause of the fact that the ROU is not included in the Working Timetable, even if there are other concurrent causes   

56.12. given the discretions and authorities at Network Rail’s disposal in the operation of Condition D4.8.2, instances when a failure to “upload to TSDB at T-12” is “because the Train Operator has failed to give Network Rail a Revised Bid in accordance with Condition D4.8.3”, and the “but for” test is therefore satisfied, are likely to be specialised and infrequent.               ORR rejects the Panel's finding at paragraph 56.12 of the Interim Determination”

56.13. Schedule 4, and in particular paragraphs 5 and 4, are drafted on the basis that a) all ROUs require Network Rail to pay compensation to the Train Operator; b) the extent to which the compensation factor is reduced by one Notification Factor rather than another depends largely on steps to be taken by Network Rail; accordingly c) the onus of proof is on Network Rail to demonstrate that those steps were taken to justify application of a particular Notification Factor.”          .    ORR rejects the Panel's finding at paragraph 56.13 of the Interim Determination 'and finds that in so far as there is a dispute of fact between the parties, the onus of proof is on the party alleging the relevant fact and once the facts are established the duty of any tribunal will be to construe the relevant provisions of the contract. and applv them to the facts.{ADP20 Interim, and ORR findings on same}}

As of 31/07/2008, the parties have advised that, on the basis of the interim determination of ADP20, and the findings of the ORR, they have been able to reach agreement, and that therefore there will be no need for any final hearing of ADP20.






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