(following a Hearing held at
Kings Cross on 20th February 2006)
John Czyrko: elected representative for Franchised
Passenger Class, Band 2
Bill Davidson: appointed representative of Network
Rail
Mike Leadbetter: elected
representative for Non-Passenger Class, Band 2
John Thompson: elected
representative for Franchised Passenger Class, Band 1
Panel Chairman: Sir
Anthony Holland
1.
The Panel was
asked, by English Welsh & Scottish Railway Ltd (“EWS”) to issue specific
directions to Network Rail in respect of two detail aspects of Rugby
Remodelling (Network Change Notice NC165, of 03/02/05), and one arising from
the amendment N165A (dated 10/10/05).
These notices relate to the further revision to the plans for Rugby
Remodelling, now intended to be operational in time for the 2008 Timetable.
2.
EWS’ areas of
concern were
2.1.
[NC165, of
03/02/05]
2.1.1.
facilities for
egress from Rugby Up Coal Yard, and available capacity for Rugby
Up Yard departures, towards Nuneaton via Shilton from commencement of the Final
Rugby Layout; and
2.1.2.
facilities for access to and egress from the New Bilton
branch, and the method of working of that branch, from commencement of the
Final Rugby Layout; and
2.2.
[NV165A, of 10/10/05]
Network Rail’s proposal to make passive provision only for Hillmorton Up
loop and the practical implications of that decision on signalling capacity and
operating constraints.
3.
At the core of
the dispute were the following questions of principle:
3.1. to what extent do Network Rail’s proposals
change the practical functionality of the layout at Rugby? Will manoeuvres feasible with the current
layout be no longer practicable? Will
such manoeuvres still be achievable, but require changes to the lines used or
the times available?
3.2. to what extent do EWS currently hold Track
Access Rights to the facilities in question?
Are those rights potentially still valid from the date (2008) at which
the remodelling is anticipated to take effect?
3.3. What is a reasonable level of assurance for
Network Rail to provide to Train Operators in respect of the functionality of
the changes planned? What is the level
of re-assurance to which a Train Operator is entitled, and what is potentially
unreasonable? Is EWS entitled to
require Network Rail to provide comprehensive timetabling proposals (for the
2008 timetable) in order to demonstrate the feasibility of the moves in dispute?
4.
The Panel
considered that these questions were properly matters to be determined by an
Access Dispute Panel in accordance with the provisions of Network Code Condition
G6.
5.
EWS, at the
time of preparing the submission, was the holder of track access rights in a
Track Access Contract scheduled to lapse in 2007. In the event the Office of Rail Regulation, before the date of
the hearing, issued a prolongation of EWS’ Track Access Contract which extended
any rights to 2015.
6.
EWS has Firm
Level 2 rights for loaded movements of coal traffic from Avonmouth, or from
Liverpool Bulk Terminal, to Rugby Up Yard.
These rights incorporate contractual benchmark mileages, but relate to
quantum only, and not to timing or time of day. The reciprocal empty flows are treated as ancillary movements,
and do not carry contractual mileage rights.
7.
EWS has no
current rights to use the New Bilton Branch on any other than a Spot Bidding
basis. EWS has aspirations to develop
further traffic through this yard but was not, at the hearing, forthcoming
about what that traffic might be.
8.
EWS expressed
concern that the level of service generally proposed for the 2008 Timetable
appears to curtail the availability of the “White Space” that is the essential
pre-requisite for developing freight business.
9.
Network Rail
recognises that the manoeuvres necessary to depart Down trains from Rugby Up
Yard towards Coventry, will, because of layout changes, be different from the
current, but is satisfied that it will be in a position to offer such a
facility within the prospective daytime interval timetable, once every 2 hours,
and more frequently during the night time hours.
10. Network Rail acknowledges that freedom of
access to and from New Bilton may, at some times, be restricted, but does not
consider that it would be impossible to service this location, should some real
traffic prospect arise.
11. Network Rail conceded that, in some
circumstances, it might be necessary for some workings of empty stock to run to
Northampton to run round. Network Rail
was not anticipating that this would be a regular occurrence, and it would seek
to ensure that it was not resorted to where this would put a clear Access Right
in jeopardy.
12. Network Rail acknowledges that, at some
point in future, traffic levels may require the construction of a loop at Hillmorton,
but has satisfied itself that it will be in a position to meet all currently
known commitments in the medium term without the need for such loop. Network Rail considers that it is taking
the most appropriate action by making passive provision within land, track
layout and signalling design such that there should be no evident impediment to
building Hillmorton Loop at some future date when an appropriate business case
can be made.
13. In respect of EWS’ contention that Network
Rail should be required to demonstrate the basis of their assertions by
undertaking a detailed timetabling exercise, 2 years in advance of the Timetable
in question, the Panel re-iterated the conclusions of an earlier Timetabling
Panel (TTP01):
“17.1 In seeking such information the Panel is NOT
seeking to impose upon any party the requirement to carry out prematurely
detailed evaluations or planning exercises.
Rather the Panel is seeking expressions of best professional judgement
upon which it can, with confidence, reasonably depend in making its
determinations. Alternatively, where
no such professional judgements are proffered the Panel is likely also to take
this into account. The rationale for
this and the preceding paragraphs is the over-arching need for the Panel to
have an understanding of the continuing viability of the commercial operation
carried out by the Train Operator” .
14.
In respect of
the grounds that might support EWS’ claim to oppose Network Rail’s proposed
changes, the Panel referred to the earlier determination of the Network and
Vehicle Change Committee in respect of the closure of Ruscombe loop, and noted
in particular:
·
“In respect
of some elements of the freight operating constraints, namely the Rules of the
Route/ Rules of the Plan, there is ample precedent, in the determinations of
both this Committee, and of Timetabling Committee, that changes can be opposed,
and overturned, but only on the basis that changes would infringe specific
access rights. There is no precedent
for challenging change in the generality.
·
It would be
illogical to treat other aspects of the freight operating constraints
differently. At any time they are the
product of past history and duly applied change procedures (Condition D or
Condition G as appropriate), and any objection to change should logically
require to be justified on the basis of identified specific impact on
contractual rights. It cannot be right
to challenge a Network Change solely on the grounds that it would result in
change to the Network.
·
Where no
rights, or reasonably prospective rights, are infringed, it would be wrong to
curb Network Rail’s freedom to exercise its discretion as to the detailed
management of the Network, given that it is Network Rail that is the
accountable body for both the efficiency and the safety of that Network” (NV58
paragraphs 9.3 to 9.5).
15. The Panel noted that this determination had
been taken on appeal to the Office of Rail Regulation, but that there its
conclusions had been upheld.
16. The Panel therefore determined that
16.1. in respect of the ability of Network Rail to honour commitments to service
Rugby Up Yard, Network Rail had given EWS sufficient comfort regarding the
capability of the revised layout to deliver contractual rights, that it would
not be reasonable to require Network Rail, as requested by EWS, to carry out a
full timetabling exercise;
16.2. in respect of the arrangements to serve New
Bilton, should the need arise, Network Rail had given EWS sufficient comfort
regarding the capability of the revised layout that it would not be reasonable,
particularly in the absence of any established Track Access Rights, to require
Network Rail, as requested by EWS, to carry out a full timetabling exercise;
16.3. in respect of the construction, or the
holding back, of Hillmorton Loop, Network Rail is the only body responsible for
making any decision, and/or preparing any business case, and is by extension
the body accountable for the performance implications of any decision. EWS is entitled to bring forward facts that
might weigh in favour of an earlier decision in favour of the construction of
the loop, but cannot require Network Rail to divert resources to this end from
other higher priority tasks.
16.4. in all three instances Network Rail has
acted responsibly and in compliance with any EWS entitlements, and EWS’s
pleadings are ill-founded and unreasonable.
17. For the avoidance of doubt, the parties
should understand that in all the above instances the Panel has found for
Network Rail on the basis of the undertakings made by Network Rail’s
representatives as to the capabilities of the revised layout at Rugby. Network Rail should be aware that such
undertakings, as documented here, and not otherwise contested, are by their
nature commitments that Network Rail must fulfil when relevant timetables are
in preparation.
18. 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.
Sir Anthony Holland
Chairman