(following a hearing held at Central House,
Euston on 8th September 2006)
Simon Barrett:
elected representative for Non-Passenger Class, Band 2
Graham Owen:
elected representative for Non-Franchised Passenger Class
Mark Pawson:
appointed representative of Network Rail
Andrew Pennington:
elected representative for Franchised Passenger Class, Band 3
Panel
Chairman: Bryan Driver
1.
First Greater
Western Ltd (FGW) asked the Panel to find that Network Rail Infrastructure Ltd
(Network Rail) should provide Train Slots for an aspirational overlay weekday
peak train service between Paddington and Slough in the December 2006 Working
Timetable.
2.
The Panel
noted that the dispute was brought under the provisions of Network Code
Condition D5.1.1(b) “ the acceptance or rejection by Network Rail of any
bid”, and therefore was properly a matter for a Timetabling Panel.
3.
FGW had bid,
in accordance with the provisions and timescales laid down in Network Code Part
D, for Train Slots corresponding to additional half-hourly services throughout
both the morning and evening peaks, to provide a stopping service between
Slough and London Paddington.
3.1. FGW stated that this level of service had
been a commitment that it had given when bidding for the Greater Western
Franchise.
3.2. FGW stated that at the time of making the
commitment in respect of its franchise bid it was aware that no Firm Rights
existed for such an overlay service.
3.3. Network Rail stated that it had been aware,
at the time of FGW’s franchise bid, of possible requirements to deal with
passenger capacity between Slough and Paddington by means of an “overlay”
service requiring trains at half-hourly intervals. However, no commitments had been given as to the feasibility of
such a proposal.
3.4. FGW’s Track Access Contract still did not
incorporate Firm Rights to the Slough overlay service.
4.
Recent
performance on the Great Western Main line has been the subject of adverse
comment and criticism, not least from the Office of Rail Regulation. Network Rail is concerned that new
aspirations should not, if converted into new offers, import new threats to the
performance that can be delivered to existing customers. In practice Network Rail has been able to
draft a timetable that offers Train Slots for the majority of the services bid
for the Slough Overlay service, compliant with the current Rules of the
Plan. However, Network Rail, in the
light of the ongoing performance problems with the existing Timetable, itself
compliant with the same Rules of the Plan, had not been prepared to make offers
for Train Slots without further evaluation of the potential for the additional
services to exacerbate current problems.
5.
In
consequence, and with the full agreement of both parties, Network Rail had
commissioned RWA Rail Ltd to carry out a simulation exercise using
Railsys. This simulation enables
assessments to be made of the likely adverse performance consequences of a
suite of perturbed circumstances, comparing the proposed 2006 Timetable (with
or without potential Slough overlay services) with current performance with the
2005 Timetable.
6.
The Panel was
pleased to have the assurance of both parties that they accepted both the
methodology used, and the results
generated, as representative of the potential performance outcome of
introducing the Slough overlay service.
Both parties agreed that the simulation demonstrated a 4% deterioration
in performance when the Slough Overlay service is added to the 2006 Timetable,
this on top of a potential deterioration, when the 2006 Timetable (without
Slough overlay) is compared with the 2005 Timetable.
7.
FGW was of the view that, notwithstanding the
results of the RailSys evaluation, where there was the possibility to generate
Train Slots for the Slough overlay service compliant with the Rules of the
Plan, Network Rail should offer these
Train Slots to FGW, and include them in the Working Timetable. Network Rail, by contrast, had a clear view
that, because of the results of the RailSys evaluation
7.1. it should not be prepared to offer any Train
Slots corresponding to FGW’s aspirational bids in respect of the Slough Overlay
service; and therefore that
7.2.
it would
oppose any application, by FGW, for any amendment to its Track Access Contract,
to give it Firm Rights in relation to the December 2006 Timetable for the Slough
Overlay service.
8.
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
Slough and Paddington in the peak. 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,
8.1. 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;
8.2. 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
8.3. provide any means of getting round, or over,
physical limitations within the track layout that preclude the plotting of an
appropriate Train Slot.
9.
The Panel
found that Condition D3 grants a clear status to aspirational bids in respect
of the development of a specific Working Timetable, and sets standards in
respect of how Network Rail should treat them:
9.1. Condition D3.2.3 “priorities in compiling
the First Working Timetable” sets out that bids for Trains Slots that are
not supported by Firm Rights (D3.2.3(a)), or which do not correspond to Train
Slots supported by Firm Rights that have reached their term, but are expected
to be renewed (D3.2.3(b)), shall, provided that they have been notified “on
or prior to the Priority Date in accordance with Condition D3.2.1(c)”, be
dealt with as a third tier of priority.
9.2. This status derives from the presumption
that where there are no rights, there are assumed to be “expectations of
rights”, i.e. that Network Rail is carrying out a technical assessment to
confirm the feasibility of conceding rights.
9.3. Network Rail is placed under specific
obligations in respect of the thoroughness of any evaluation that it may be
required to undertake to establish whether or not it can meet “expectations
of rights”.
9.3.1. Condition D3.2.2 requires that the Working
Timetable
9.3.1.1. “includes …the Train Slots shown in the Base
Timetable, together with the additions, amendments and deletions requested by
Bidders…so far as reasonably practicable taking into account the complexity of
those changes, including any reasonably foreseeable impact on the Working
Timetable…and having due regard to the Decision Criteria” (Condition D3.2.2(c)); and
9.3.1.2. “in Network Rail’s opinion is capable of
being brought into operation” (Condition D3.2.2(a)).
9.3.2. Condition D3.2.4 “Development of the
Draft Timetable” extends the obligation to “new aspirations”, and
requires that Network Rail “shall incorporate each new aspiration into the
Draft Timetable in accordance with the priorities set out in Condition D3.2.3…”
“so far as reasonably practicable
taking into account the complexity of the new aspirations, including any
reasonably foreseeable consequential impact on the working timetable”.(Condition
3.2.4(b)).
10. The Panel did NOT find that any of these
obligations implied that any aspirational Bid should inevitably progress
through the Timetabling process, and the subsequent agreement, and approval by
Office of Rail Regulation, of a new, or amended, Track Access Contract. Instead the Panel concluded that
10.1. aspirational bids should be processed as “expectations
of rights”, for as long as it takes to establish the feasibility of
offering practicable Train Slots to meet those aspirations, at which point the
Bidder could reasonably anticipate being able to reach agreement with Network Rail on appropriate terms for
Firm Rights;
10.2. where Network Rail has concluded that it is
not prepared to make an offer against “expectations of rights”, then it
is open to the Bidder to appeal to a Panel, under Condition D5.1.1(b); in such a case
10.3. a Panel might find that Network Rail has not
explored all reasonable possibilities, and therefore should still entertain the
Bidder’s “expectations of rights”, and seek to include a Train Slot
corresponding to the aspiration underpinning the “expectation of right”; however,
10.4. a Panel has NO authority to direct Network
Rail to convert any “expectation of rights”, into Firm Rights, as this
is a matter for the parties subject to the approval of the Office of Rail
Regulation; by the same reasoning
10.5. if Network Rail has reasonably concluded
that a Train Slot corresponding to the “the “expectation of right” is
NOT “capable of being brought into operation”, and the Panel finds in
support of Network Rail’s conclusion, then Network Rail and the Panel are
effectively concurring that
10.5.1. the Bidder should no longer, for the
purposes of the aspiration in respect of the Timetable in question, have an “expectation
of right”, and therefore
10.5.2. Network Rail is entitled to exclude that
aspiration from the Working Timetable.
11.
In the view of
the Panel, where Network Rail has reasonably decided that it will not support a
Train Operator in seeking a specific Firm Right, the matter can only be
progressed further by the parties, subject to the approval of the Office of
Rail Regulation, and therefore falls outside the jurisdiction of a Timetabling
Panel.
12. The Panel found that
12.1. in respect of the Slough overlay service
FGW’s bids were aspirational; as such
they fall to be dealt with as “expectations of rights” rather than firm rights,
and are properly accorded a lower priority in respect of the operation of
Network Code Condition D3.2.3;
12.2. Network Rail has demonstrated that it has
evaluated options with a thoroughness that can reasonably be judged to fulfil
the requirements set down in Condition D3.2.2(c) by seeking to include in the
base Timetable “the additions…requested
by the bidders …so far as reasonably practicable taking into account the
complexity of those changes, including any reasonably foreseeable consequential
impact on the working timetable, and …having due regard to the decision
criteria”;
12.3. Network Rail has demonstrated that it has
evaluated options with a thoroughness that can reasonably be judged to fulfil
the requirements set down in Condition D3.2.4(b) that ”Network Rail shall, so far as reasonably practicable taking into
account the complexity of the new aspirations, including any reasonably
foreseeable consequential impact on the working timetable”. In particular, Network Rail has
commissioned evaluations of the “reasonably
foreseeable consequential impact on the working timetable”, the validity of
the results of which are accepted by both Network Rail and FGW.
12.4. those efforts have lead Network Rail (taking
into account the current levels of performance, together with all its
commitments to other Train Operators) to the conclusion, that, whilst it is
technically possible to allocate Train Slots that comply with the applicable
Rules of the Plan to a majority of the “overlay services”, a Timetable
constructed in that way would deliver significantly worse performance both as compared
with the 2005 Timetable, and as compared with a version of the 2006 Timetable
that does not incorporate such services;
12.5. Network Rail therefore declines to
incorporate such services in the Working Timetable for December 2006, and would
oppose any application by FGW to the Office of Rail Regulation to have its
aspirations for the Slough Overlay service translated into a Firm Right in
respect of the December 2006 Timetable.
13. The Panel therefore concluded that
13.1. Network Rail is the party with the ultimate authority
to determine the technical feasibility, within Network Code Part D, of meeting
the aspirations of a Train Operator not in possession of a relevant Firm Right,
subject only to the rights of appeal set out in Condition D5;
13.2. Network Rail has fulfilled all of its
responsibilities to FGW in respect of its proper administration of the
provisions of Network Code Part D, in relation to FGW’s aspirations to operate
the Slough Overlay service during the December 2006 Timetable;
13.3. The Parties are agreed that the inclusion of
the Slough Overlay service in the 2006 Timetable would have an adverse effect
upon performance, affecting other Train Operators in addition to FGW; in such circumstances, it is, in the view of
the Panel, reasonable to conclude that Network Rail is entitled to decide that
it does not wish to put its performance obligations in jeopardy, and so to
decide that it will not incorporate the Slough Overlay service into the 2006
Timetable;
13.4. in terms of the operation of priorities
within Network Code Part D, the effect of this conclusion by Network Rail
should reasonably be that FGW can no longer claim that it has “expectations of
rights” in respect of the Slough Overlay service.
14. The Panel therefore determined that,
14.1. where Network Rail has demonstrably complied
with the provisions of Network Code Part D, and has reasonably concluded that
there should be no “expectations of rights” the issue in question becomes one
for FGW to raise, through an application for rights, with the Office of Rail
Regulation; as such
14.2. the issue becomes one that lies beyond the
scope of the provisions of Network Code Part D, and therefore one where the
Panel has no jurisdiction that would enable it to find in favour of the
position brought by FGW.
15. The Panel has complied with the requirements
of Rule A1.72, and is satisfied that the determination, in all the
circumstances set out above, is legally sound, and appropriate in form.
Bryan
Driver
Panel
Chairman