The Railways (Access,
Management
and Licensing of
Railway
Undertakings)
Regulations 2016, as amended
Access to the rail network
and
service facilities, infrastructure
management and appeals
28 July 2021
2
Contents
1. Overview 3
Introduction 3
Legislative framework 3
Interpretation 7
Key changes 7
ORR guidance 7
2. Access to infrastructure 9
Introduction 9
Regulation 5: access rights 9
Regulation 6(1): Minimum access package 10
3. Infrastructure managers 11
Introduction 11
Infrastructure management and independence of undertakings 11
Network statements 11
Infrastructure charges 13
Allocation of infrastructure capacity 15
4. Access to service facilities 17
17
17
Introduction
Provision of information
Service facility charges 33
5. Appeals 37
Introduction 37
Appeals to ORR 37
The appeals process 41
Annex: Key Definitions 47
3
1. Overview
Introduction
1 This guidance sets out the Office of Rail and Road’s (ORR’s) interpretation of The
Railways (Access, Management and Licensing of Railway Undertakings) Regulations
2016, as amended (the 2016 Regulations). The focus is on these key areas:
● Access to infrastructure and service facilities.
● Infrastructure managers’ responsibilities.
● Appeals to ORR.
Legislative framework
2 Since 2016, the legislative framework has evolved, both at EU and domestic level
1
.
This guidance also reflects the new rules which came into force from 1 January 2021
at the end of the transition period following the exit of the UK from the EU. The 2016
Regulations were amended several times to account for this new situation
2
.
3 This guidance also reflects the provisions of the Commission Implementing
Regulation 2017/2177 of 22 November 2017 on access to service facilities and rail-
related services (the Implementing Regulation)
3
, which supplements a number of
obligations set out in the 2016 Regulations (relating to service facilities).
4 This guidance covers significant elements of the legislation that infrastructure
managers, railway undertakings and service providers should be aware of and
explains ORR’s policy and processes. However, we do not seek to cover every
aspect of the legislation. It is the responsibility of individual businesses to ensure that
they are compliant with the law.
1
For further details, see https://www.orr.gov.uk/about/how-we-work/strategy-duties/international-law and
Brexit: New rules and legislation on rail transport from 1 January 2021 | Office of Rail and Road (orr.gov.uk).
2
The 2016 Regulations were amended by The Railways (Access, Management and Licensing of Railway
Undertakings) (Amendments etc.) (EU Exit) Regulations 2019 (SI 2019/518) and by The Railways (Safety,
Access, Management and Interoperability) (Miscellaneous Amendments and Transitional Provision (EU Exit)
Regulations 2019 (SI 2019/1310) http://www.legislation.gov.uk/uksi/2019/1310/made/data.pdf
.
3
The Implementing Regulation: https://www.legislation.gov.uk/eur/2017/2177/contents.
4
5 While this guidance covers changes to some provisions of the 2016 Regulations, it
does not cover all the new provisions introduced by subsequent regulations. You
should read the 2016 Regulations in full and as amended.
6 The structure of this module is:
● Chapter 1: An overview of this guidance and the legislation.
● Chapter 2: Access to infrastructure.
● Chapter 3: Infrastructure managers.
● Chapter 4: Access to service facilities.
● Chapter 5: Appeals.
● Annex: Definitions.
Application of the 2016 Regulations
7 The 2016 Regulations and the Implementing Regulation apply alongside the
Railways Act 1993 (the Act). Where the Act applies, service providers should follow
the established ORR procedures, such as for contesting access to a rail facility under
section 17 of the Act.
8 The 2016 Regulations
4
describe entitlements and obligations in respect of access
and governance for railway undertakings (as well as service providers and
infrastructure managers).
9 These entitlements and obligations do not apply to railway undertakings whose
activities are limited to the provision of solely urban, suburban or regional services on
local and regional stand-alone networks for transport services on railway
infrastructure, or on networks intended only for the operation of urban or suburban
rail services
5
. However, where such a railway undertaking is under the direct or
indirect control of an undertaking or another entity performing or integrating rail
transport services (other than urban, suburban or regional services), the provisions
on management independence, separation of accounts and business plans will still
apply
6
.
4
Subject to regulations 4(3) and 4(6), these are Parts 2 and 3 (save for regulation 13), regulations 14(9) and
(10), 15(1) to (6), 19(4), 33 and Schedule 2.
5
See regulation 4(3).
6
See regulations 8, 9 and 12(4) to (7).
5
10 Further, the provisions of the 2016 Regulations relating to:
● access to services, independence of service providers, indicative railway
infrastructure strategy, business plans, network statement, infrastructure
charges, allocation of infrastructure capacity, regulation and appeals; and
● the provisions relating to services to be supplied to railway undertakings,
access charging, timetable for the allocation process and accounting
information to be supplied to ORR upon request
7
,
do not apply to these networks
8
:
● local and regional stand-alone networks for passenger services on railway
infrastructure;
● networks intended only for the operation of urban or suburban rail passenger
services;
● regional networks used for regional freight services solely by a railway
undertaking already excluded from the scope of the 2016 Regulations (until
such time as capacity is requested by another applicant);
● networks that are used only by the person responsible for that network for the
purposes of freight operations connected with the premises or building works,
which are:
– situated within a factory, nuclear site, or site housing electrical plant;
– within a mine or quarry;
– used solely in connection with the carrying out of any building works;
– within a military establishment.
11 The Department for Transport has produced separate guidance on the scope of the
2016 Regulations
9
.
The Implementing Regulation
12 The Implementing Regulation
10
setting out new rules relating to service facilities was
adopted in November 2017 and most provisions entered into force from 1 June
7
See regulations 6, 10, 11, 12(1) to 12(3), 13, Parts 4 to 6 and Schedules 2 to 5.
8
See regulation 4(6).
9
DfT guidance on scope: https://www.gov.uk/government/publications/recast-first-railway-package-
guidance-on-scope-of-2016-transposition-regulations.
10
The Implementing Regulation: https://www.legislation.gov.uk/eur/2017/2177/contents
6
2019
11
. Since the exit of the UK from the EU, the Implementing Regulation has been
amended to correct inoperabilities
12
.
13 The Implementing Regulation applies to all service providers covered by the
Regulations 2016. Certain railway undertakings and networks are exempted from
certain provisions relating to the access regime and these exemptions are reflected
in the 2016 Regulations. Where a service facility is not subject to the requirements in
the 2016 Regulations then the Implementing Regulation will not apply to it.
14 Even where the 2016 Regulations do apply to the service facility, it is possible for
certain service facilities to apply to ORR for exemptions from certain provisions. The
procedures for doing this are explained below.
15 Article 2(2) of the Implementing Regulation allows ORR to exempt service
providers
13
from all or some of its provisions, with some exceptions
14
. Article 2(1)
states that operators of service facilities that exist solely for use by heritage railway
operators for their own purposes may request exemption from the whole of the
Implementing Regulation. ORR will consider any applications received on a case by
case basis. We will have regard to the criteria set out in the Implementing Regulation
and the Independent Regulators’ Group (Rail)’s (IRG-Rail) paper on exemptions
15
.
16 Exemption from the Implementing Regulation does not provide exemption from any
of the obligations under the 2016 Regulations or the Act.
Equivalent regulations
17 The 2016 Regulations do not extend to Northern Ireland; separate regulations apply.
Please see our separate guidance
16
.
11
The provisions concerning applying for exemption applied from 1 January 2019.
12
The Railways (Safety, Access, Management and Interoperability) (Miscellaneous Amendments and
Transitional Provision) (EU Exit) Regulations 2019 (legislation.gov.uk).
13
According to Art. 2(2), the operators of service facilities that operate the following service facilities or
provide the following services: service facilities or services which do not have any strategic importance for
the functioning of the rail transport services market, in particular as regards level of use of the facility, the
type and volume of traffic potentially impacted and the type of services offered in the facility; service facilities
or services which are operated or provided in a competitive market environment with a variety of competitors
providing comparable services; service facilities or services where the application of this Regulation could
negatively impact the functioning of the service facility market.
14
According to Art. 2(1), these service providers may request to be exempted from the application of all or
some of the provisions of the Implementing Regulation, with the exception of Articles 4(2)(a) to (d) and (m)
and 5.
15
Independent Regulators’ Group – Rail Subgroup on Access to Service Facilities Common Principles on
granting exemptions under Article 2 (2) of Commission Implementing Regulation (EU) 2017/2177
https://www.irg-rail.eu/
.
16
http://orr.gov.uk/rail/economic-regulation/northern-ireland-regulation.
7
18 There are additional bi-national regulations set out in the schedule to the Channel
Tunnel (International Arrangements) (Charging Framework and Transfer of Economic
Regulation Functions) Order 2015 that apply in respect of the UK section of the
Channel Tunnel.
Interpretation
19 In this guidance, except where specifically indicated otherwise, a reference to a
regulation is to the 2016 Regulations and a reference to an article is to the
Implementing Regulation. Some key definitions are set out in the annex to this
module for ease of reference.
20 Please note that through the different legislation there are now a variety of different
terms covering the operators, managers and owners of service facilities and sites.
For convenience, we generally refer simply to service providers and service
facilities in this guidance. If you are in any doubt as to whether a provision applies to
you, please refer directly to the legislation.
Key changes
21 Some key changes made by the Implementing Regulation, as reflected in this
guidance, include: (this list is not exhaustive).
● Service providers must provide Service Facility Descriptions containing specific
information about their service facilities.
● Infrastructure managers, like Network Rail, must provide a template, facilitate
collection of Service Facility Descriptions and publish them through their
network statements.
● Certain exemptions are possible.
● Details are added for the process for considering access requests.
● Clarification is added for unused service facilities.
22 Whilst we have endeavoured to flag relevant changes in this guidance, we
recommend that you also refer in detail to the legislation.
ORR guidance
23 ORR has also published other guidance that may be relevant and of interest. This
section sets out some of them.
8
24 The 2016 Regulations require us to monitor the competitive situation in the rail
services market. This duty sits alongside our monitoring responsibilities under the Act
and competition law. Guidance, ‘ORR’s approach to monitoring and reviewing
markets’, is available on our website
17
.
25 ORR has the power to fine a ‘relevant operator’ who has contravened or is
contravening a decision, direction or notice issued by us under the 2016 Regulations.
ORR’s policy regarding the imposition of penalties, ‘ORR’s economic enforcement
policy and penalties statement - Great Britain’, is available on our website
18
.
26 We have published a suite of separate guidance modules on access contracts and
our approach to regulating track access on our website
19
.
17
https://orr.gov.uk/__data/assets/pdf_file/0007/23974/orr-approach-to-monitoring-and-reviewing-
markets.pdf.
18
https://orr.gov.uk/__data/assets/pdf_file/0018/4716/economic-enforcement-statement.pdf.
19
https://orr.gov.uk/rail/access-to-the-network/track-access/guidance.
9
2. Access to infrastructure
Introduction
1 The entitlement of railway undertakings to access railway infrastructure and service
facilities is set out in regulations 5 and 6 of the 2016 Regulations.
2 We expect infrastructure managers and service providers to have regard to the
principles of transparency, non-discrimination and fair competition in the application of
regulations 5 and 6 (as applicable).
3 We cover regulation 6 and access to service facilities and the supply of services in
Chapter 4.
Regulation 5: access rights
4 Regulation 5(1)
20
applies to railway undertakings operating all types of rail freight
services or international passenger services. It gives these railway undertakings
access rights
21
to the railway infrastructure (network, station and track) necessary to
operate these types of services.
5 Regulation 5(2) provides that the access rights described in regulation 5(1) include
access to railway infrastructure (usually track) connecting the service facilities
referred to in paragraph 2 of Schedule 2, which includes refuelling facilities,
passenger stations and freight terminals.
6 Regulation 5(3) provides that the access rights described in regulation 5(1) for the
purpose of operating rail freight services include the right of access to railway
infrastructure serving, or potentially serving, more than one final customer.
7 ORR may in accordance with regulation 33, where requested by a relevant party,
limit the access rights granted by regulation 5 in relation to the operation of
international passenger services between a place of departure and a destination
where one or more public service contracts cover the same route or an alternative
route (cabotage)
22
, and the exercise of such access rights would compromise the
economic equilibrium of the public service contract or contracts in question. This is
21
‘access rights’ is defined in regulation 3 as meaning rights of access to railway infrastructure for the
purpose of operating a service for the transport of goods or passengers.
22
See regulation 5(6).
10
referred to as the Economic Equilibrium Test on which we have published separate
guidance
23
.
8 Infrastructure managers must ensure that the entitlements to access provided by
regulation 5 are honoured
24
. There is no provision in regulation 5 which enables an
infrastructure manager to refuse a request for access made under that regulation.
9 A railway undertaking has a right to appeal to ORR under regulation 32
25
if it is
denied the entitlements conferred on it under regulation 5.
Regulation 6(1): Minimum access package
10 Regulation 6(1) requires infrastructure managers to supply to all railway undertakings
the minimum access package in a non-discriminatory manner. The minimum access
package is set out in paragraph 1 of Schedule 2. It is primarily concerned with access
to track and the infrastructure around track, including power supplies and signalling.
11 To clarify the interaction between regulation 5(1) and regulation 6(1), we have set out
below our view on the application of these regulations.
12 While regulation 5(1) and regulation 6(1) both give rights of access to railway
undertakings, regulation 5(1) applies only to railway undertakings seeking access for
the purpose of operating international passenger services and freight services.
Regulation 6(1) applies to all railway undertakings, including those seeking access
for the purpose of operating domestic passenger services.
13 We would therefore expect railway undertakings seeking access rights for
international passenger services and freight services to rely on regulation 5(1) for
access to railway infrastructure while all railway undertakings that are seeking rights
of access in accordance with the minimum access package should rely on regulation
6(1)
14 A railway undertaking has a right to appeal to ORR under regulation 32 if it is denied
the entitlements conferred on it under regulation 6(1).
23
https://orr.gov.uk/rail/access-to-the-network/track-access/guidance.
24
See regulation 5(8).
25
See regulation 5(9).
11
3. Infrastructure managers
Introduction
1 This chapter covers the 2016 Regulations with regards to infrastructure,
in particular
in relation to infrastructure management, infrastructure charges and allocation of
infrastructure capacity.
Infrastructure management and independence of
undertakings
2 The requirements relating to infrastructure management and the independence of
undertakings for railway undertakings, infrastructure managers and service providers
are set out in Part 3 of the 2016 Regulations
26
.
Network statements
3 Under regulation 13(1) infrastructure managers must, after consultation with all
interested parties, develop and publish a network statement no less than four months
before the deadline for applications for infrastructure capacity (the Priority Date). The
information the network statement must contain is set out in regulation 13(4). The
network statement should be published annually.
4 Where a charging body
27
or an allocation body
28
is responsible for the functions of
the infrastructure manager, that charging body or allocation body must provide the
infrastructure manager with such information as is necessary to enable the
infrastructure manager to:
● include the information set out in regulation 13(4) in the network statement; and
26
Regulations 8 to 13: these set out provisions dealing with management independence; separation of
accounts; independence of service providers from dominant bodies and firms; indicative railway
infrastructure strategy; business plans; and network statements.
27
A charging body means a body, other than the infrastructure manager, which is responsible for the
functions and obligations of the infrastructure manager under Part 4 and Schedule 3 because the
infrastructure manager is not independent of any railway undertaking. Refer to regulation 3 for the full
definition.
28
An allocation body means a body, other than the infrastructure manager, which is responsible for the
functions and obligations of the infrastructure manager under Part 5 and Schedule 4 because the
infrastructure manager is not independent of any railway undertaking. Refer to regulation 3 for the full
definition.
12
● keep the network statement up to date
29
.
5 Service providers (where they are not the infrastructure manager) must provide the
infrastructure manager of the railway infrastructure to which their relevant service
facility is connected with sufficient information (covering technical, access and charging
arrangements) to enable the infrastructure manager to:
● include in its network statement information
30
on access to and charges for
services facilities and supply of rail-related services listed in Schedule 2,
including information on technical access conditions, or details of a website
where such information is available; and
● keep the network statement up to date
31
.
6 They may use the template developed for service providers to do this
32
. It is also a
requirement for the infrastructure manager to specify in the network statement or on
its web portal the deadline for receipt of the relevant information on service facilities
or the relevant link to be published in the network statement
33
.
7 Where information which a charging body, allocation body or service provider is
required to provide to an infrastructure manager under regulation 13(2) or 13(3) is not
provided to the satisfaction of that infrastructure manager, the infrastructure manager
may refer the matter to ORR for a determination as to whether additional information
must be supplied
34
. Where such a matter is referred to ORR, we will make the
determination within such period as is reasonable in the circumstances. This
determination will be binding on all parties.
8 Network statements, in their provisional and final versions and the information which
must be included, can be the subject of an appeal to ORR under regulation 32
35
. An
appeal brought in relation to a network statement will be dealt with in accordance
with the process set out in Appeals chapter of this guidance
36
.
29
See regulation 13(2).
30
As required by regulation 13(6), this information must include information on changes to charges for the
supply of service facilities already decided upon or foreseen in the next five years, if available, and
information on charges as well as other relevant information on access applying to services listed in
Schedule 2 which are provided by only one supplier.
31
See regulation 13(3).
32
Contact Network Rail or the relevant IM for details.
33
See article 5(2) of the Implementing Regulation.
34
See regulation 13(13).
35
See regulation 32(2)(a)(b).
36
https://orr.gov.uk/rail/access-to-the-network/track-access/guidance.
13
Infrastructure charges
9 Part 4 of the 2016 Regulations concerns charges for access to infrastructure. In
particular, regulation 14 sets out the provisions concerning the establishment,
determination and collection of infrastructure charges
37
.
10 ORR is responsible for establishing the charging framework and the specific charging
rules governing the determination of the charges to be set by infrastructure
managers
38
except for HS1 and Eurotunnel, to which separate provisions apply
39
.
For
Network Rail, ORR fulfils this obligation through the Network Rail periodic review
40
.
11 Each infrastructure manager is responsible for determining the charges to be charged
for the use of its railway infrastructure in accordance with the applicable charging
framework, the specific charging rules and the principles and exceptions set out in
Schedule 3. Infrastructure managers must also collect these charges
41
.
12 Charges for use of the railway infrastructure by way of charges for the minimum
access package and track access to the service facilities referred to in paragraphs 1
and 2 of Schedule 2, must be set at the cost that is directly incurred as a result of
operating the train service
42
. However, with the appropriate approval, an
infrastructure manager may levy mark-ups on the basis of efficient, transparent and
non-discriminatory principles
43
.
13 The Implementing Regulation 2015/909
as amended
44
sets out the methodology for
calculating costs directly incurred and includes a list of non-eligible costs.
Infrastructure managers should familiarise themselves with the detail of this
legislation when determining its charges.
Infrastructure costs and accounts
14 For railway infrastructure other than HS1, ORR must ensure that, under normal
business conditions and over a reasonable time period (not exceeding five years), the
accounts of the infrastructure manager at least balance income from railway
37
Please see the section on service facilities charges. This will be applicable for service providers and
infrastructure managers who also own or operate service facilities.
38
See regulation 14(1) and 14(6).
39
See regulation 14(3).
40
http://orr.gov.uk/what-and-how-we-regulate/regulation-of-network-rail/how-we-regulate-
networkrail/periodic-review-2018 and https://orr.gov.uk/rail/economic-regulation/regulation-of-network-
rail/price-controls/periodic-review-2018.
41
Regulation 14(2).
42
Para 1(4) of Schedule 3.
43
Para 2(1) of Schedule 3.
44
http://www.legislation.gov.uk/uksi/2019/518/pdfs/uksi_20190518_en.pdf.
14
infrastructure charges, surpluses from other commercial activities, non-refundable
incomes from private sources and state funding, with railway infrastructure
expenditure
45
.
15 For HS1, the Secretary of State must ensure that HS1’s infrastructure costs and
accounts balance
46
.
16 ORR is responsible for ensuring the balance of infrastructure accounts for Network
Rail through the access charges review
47
. For other infrastructure managers (not
including HS1), we have the power to issue directions limiting, to any extent
necessary, an infrastructure manager’s ability to finance infrastructure expenditure
out of borrowed funds in order to ensure this balance
48
.
17 ORR is responsible for providing all infrastructure managers (including HS1) with
incentives to reduce the costs of provision of railway infrastructure and the level of
access charges
49
.
Performance scheme
18 Infrastructure managers must establish a performance scheme as part of the
charging system to encourage the minimisation of disruption and to improve overall
performance of the network
50
.
19 This performance scheme may include penalties for actions which disrupt the
operation of the network, compensation arrangements for undertakings which suffer
from disruption and bonuses that reward better than planned performance
51
.
20 The performance scheme must be based on the principles listed in paragraph 7 of
Schedule 3 of the 2016 Regulations and must apply in a non-discriminatory manner
throughout the network to which the scheme relates
52
.
21 We approve the performance regime for Network Rail and other infrastructure
managers as part of their periodic review processes.
45
Reg 15(1).
46
Reg 15(3).
47
Reg 15(2).
48
Reg 15(4).
49
Reg 15(7) and (8).
50
Reg 16(1).
51
Reg 16(2).
52
Reg 16(3).
15
Reservation charges
22 Infrastructure managers may levy a reservation charge for capacity that is requested
but is not used
53
. Where the infrastructure manager chooses to make provision for a
reservation charge, that charge must provide incentives for efficient use of capacity
and will be mandatory in the case of a regular failure by an applicant to use the paths,
or part of the paths, allocated to them
54
.
23 Where provision for a reservation charge has been made, the infrastructure manager
must publish in its network statement the criteria used to determine the failure to use
allocated train paths
55
. ORR must also, where such a provision has been made,
control such criteria in accordance with regulations 32 and 34
56
.
24 The charging scheme and charging system, and the level or structure of infrastructure
charges, can be the subject of an appeal to us under regulation 32
57
.
Allocation of infrastructure capacity
25 Part 5 and Schedule 4 (as amended)
58
set out the framework and timetable for the
allocation of infrastructure capacity
59
. The trading of capacity between applicants is
prohibited and allocation in the form of fixed train paths cannot be granted for longer
than one timetable period. Regulations 26 to 28 set out the procedure that must be
followed where an element of the railway infrastructure is congested, and regulation
29 provides a “use it or lose it” provision in respect of allocated capacity. Part 5 only
applies to infrastructure managers. Undertakings that are only service providers for
the purpose of the 2016 Regulations (such as port or terminal owners) will therefore
not be covered by these provisions.
26 Infrastructure managers are responsible for the establishment of specific capacity
allocation rules and for the allocation of infrastructure capacity
60
. Pursuant to
53
Reg 17(1).
54
Reg 17(2).
55
Reg 17(3)(a).
56
Reg 17(3)(b).
57
Reg 32(2)(d) and (e).
58
The Schedule substantially reproduces the provisions of Annex VII to the Recast Directive (the text of
which was replaced by Commission Delegated Decision (EU) 2017/2075).
59
Regulations 19 to 30 set out provisions dealing with capacity allocation, cooperation in the allocation of
infrastructure capacity crossing more than one network, framework agreements, applications for
infrastructure capacity, scheduling and co-ordination, ad hoc requests, declarations of specialised
infrastructure, congested infrastructure, capacity analysis, capacity enhancement plans, use of train paths
and special measures to be taken in the event of disruption. Schedule 4 sets out the timetable for the
allocation process.
60
Regulation 19(3) and our track access guidance.
16
regulation 19(1), there is an established framework
61
for the allocation of
infrastructure capacity.
27 New rules
62
regarding the procedures and criteria concerning framework agreements
for the allocation of rail infrastructure capacity were adopted in April 2016. These
applied from December 2016 and are relevant to holders of framework agreements
(track access contracts in Great Britain). Infrastructure managers should ensure they
are familiar with, and understand, the requirements.
28 Matters relating to the allocation process and its results can be the subject of an
appeal to ORR under regulation 32
63
.
61
The framework does not apply to HS1. For HS1 it is for the Secretary of State to establish a framework if
so required.
62
https://www.legislation.gov.uk/eur/2016/545/contents.
63
See reg 32(2)(c).
17
4. Access to service facilities
Introduction
1 This chapter focuses on access to service facilities. Legislation permits railway
undertakings to obtain access to other operators’ service facilities in Great Britain.
This chapter sets out how that access regime works and in particular certain key
changes introduced by the Implementing Regulation, which include:
● The introduction of further details regarding the information to be published on
the service facility and/or rail related services and the obligation to produce a
Service Facility Description.
● The establishment of timescales for responding to requests.
● Rules applying when a service provider receives a request that is in conflict with
another request and in particular additional provisions relating to the process for
considering viable alternatives.
2 Please note that, ‘privately owned’ facilities do fall within the scope of the UK’s
legislative requirements.
Provision of information
Summary
3 Transparency of access arrangements and procedures is key to ensuring the basis
for non-discriminatory access to service facilities for all railway undertakings, as
required by the 2016 Regulations. The Implementing Regulation sets out further
detail on information that must be made available, in the form of a Service Facility
Description, and on requirements to make this information publicly available.
Service Facility Description
4 Article 4 of the Implementing Regulation provides that service providers must make
available a ‘Service Facility Description’ for the service facilities and services for
which they are responsible. The Service Facility Description must include at least the
following information:
● List of all the relevant installations including their locations and opening hours.
● Key contact details of the service provider.
18
● A description of the technical characteristics.
● A description of all rail-related services supplied in the facility and of their type
(basic, additional or ancillary).
● The possibility of self-supply and the conditions to be met for self-supply.
● Information on the procedures for requesting access, with any deadlines for
submitting the requests and time limits for handling them.
● Information on whether separate requests are needed where there is more than
one provider of services.
● Information on the minimum content and format of an access request or a
template.
● Model access contracts and general terms and conditions, in particular where
service facilities are operated by operators under the direct or indirect control of
a controlling entity
64
.
● Information on the terms of use of IT systems, where access to these systems
is required, and the rules concerning the protection of sensitive and commercial
data.
● A description of the coordination procedure and measures which may be
adopted to maximise capacity and any priority criteria.
● Information on changes in technical characteristics and temporary capacity
restrictions which could have a major impact on operation.
● Information on charges.
● Information on principles of discount schemes offered, respecting commercial
confidentiality requirements.
Publication
5 Article 5 of the Implementing Regulation provides that service providers must make
the Service Facility Descriptions available free of charge through the infrastructure
manager’s network statement
65
. The service provider can supply the Service Facility
64
Defined in Article 3 of the Implementing Regulation.
65
Network Rail’s network statement and service provider information is available here:
https://www.networkrail.co.uk/industry-commercial-partners/information-operating-companies/network-
statement/.
19
Description to the infrastructure manager or provide the infrastructure manager with a
link to the service provider’s Service Facility Description. This must be done in
accordance with the deadline set by the infrastructure manager for receipt of
information to be published in the infrastructure manager’s network statement or web
portal. Service facility operators may as an alternative publish the service facility
description on their own website and share the link with the infrastructure manager
for publication in the network statement. The information contained in the service
facility description must be kept up to date by the service facility operator as
necessary.
6 Although not compulsory, we encourage service providers to use the common
template that has been developed by RailNetEurope and that service providers may
use
66
.
Regulation 6: Access to services
7 Regulations 6(2) to 6(12) of the 2016 Regulations deal with access to, and the supply
of, services for railway undertakings. Service providers are required to supply access
to all railway undertakings. This includes track access, and access to service facilities
and the supply of services described in paragraph 2 of Schedule 2. This includes
refuelling,
stations, marshalling yards, storage sidings and freight terminals.
8 Service providers must supply access to services to all railway undertakings who are
seeking access to service facilities and the supply of services (including the supply of
services at ports and terminals).
9 Requests for access to, and the supply of, services must be answered within a
reasonable time limit as set by ORR
67
. In our view a reasonable time limit is, as a
general rule, ten working days, commencing on the first working day after the request
has been made. However, where there is a short-notice request (such as ad hoc
requests for unplanned access), we would expect service providers to deal with such
requests within a shorter timescale where it is reasonable to do so. We do not intend
to set a separate time limit for short-notice requests as matters stand.
10 Under regulation 6, only railway undertakings (and not applicants more widely) are
entitled to be supplied the minimum access package and to request access to, and
supply of, services described in paragraph 2 of Schedule 2.
66
https://www.networkrail.co.uk/industry-and-commercial/information-for-operators/network-statement/.
67
Regulation 6(3).
20
11 The 2016 Regulations
68
and Article 13(3) of the Implementing Regulation require a
service provider to justify, in writing, a decision to refuse a request for access to, and
the supply of, services in specified situations. As well as this, Article 13(4) of the
Implementing Regulation requires a service provider to demonstrate reasons at the
request of an applicant. However, we expect all service providers to ensure refusals
for any of the services referred to in paragraph 2 of Schedule 2 are in writing and fully
reasoned and objectively justified. Therefore, whenever a service provider is refusing
access, we expect the service provider to explain why it is refusing access and,
where applicable, why it considers the alternative facility it has identified is a viable
alternative for the railway undertaking. This is because all such decisions are
appealable and may be subject to ORR scrutiny in due course.
Non-conflicting requests for access to services
12 A non-conflicting request is one where the request does not conflict either with
requests from other railway undertakings or with capacity at the facility which has
already been allocated to another railway undertaking. Regulation 6(4) provides that
a request for access to, and the supply of, any of the services described in paragraph
2 of Schedule 2, may only be refused if a viable alternative exists, which would
enable the railway undertaking to operate the freight or passenger service concerned
on the same or an alternative route under economically acceptable conditions.
13 When considering viable alternatives, the process we would generally expect to be
followed (in article 12 of the Implementing Regulation) is set out below.
14 The provisions of regulation 6(4) do not, however, require the service provider to
make investments in resources or facilities in order to accommodate all requests by
railway undertakings for access to, and the supply of, services. Accordingly, where
there is a non-conflicting request which would require such investment, we consider
that a service provider may refuse a request without having to consider if a viable
alternative exists.
15 The flowchart at diagram A sets out the indicative process and steps a service
provider should follow when considering non-conflicting requests for access to
services. It does not, however, cover every eventuality or circumstance and it is for
the service provider to ensure it complies with the legal requirements under the 2016
Regulations and the Implementing Regulation.
68
Regulation 6(5).
21
Conflicting requests for access to services (including conflict with
allocated capacity)
16 Regulations 6(7) and 6(8) and articles 10 to 11 of the Implementing Regulation set out
the process that must be followed where a service provider receives a request for
access to a service facility (or supply of a service), described in paragraph 2 of
Schedule 2, which conflicts with another request or with service facility capacity
which is already allocated. We refer to these as ‘conflicting requests’.
17 Regulations 6(4) and 6(5) apply to conflicting requests as well as non-conflicting
requests. In other words, requests may only be refused where there is a viable
alternative, but this does not require the service provider to make investments in
resources or facilities in order to accommodate all requests. However, for conflicting
requests, there are also a number of other provisions to consider.
18 Regulation 6(7) provides that where there are conflicting requests, the service
provider must attempt to meet all requests in so far as possible. Article 10 of the
Implementing Regulation builds on this by requiring the service provider to complete
a coordination procedure as a first step, to attempt to remove the conflict through
agreement with affected parties.
Stage 1 - The Coordination Procedure
19 The Coordination Procedure set out in the Implementing Regulation is described in
this text box:
Stage 1 - The Coordination Procedure:
The service provider must attempt to ensure the best possible matching of
all requests and meet all requests in so far as possible
69
. This should be
achieved through discussion and coordination with the relevant railway
undertakings.
Where the request conflicts with capacity that has already been allocated
at the service facility and would involve modifying access rights which
have already been granted, the service provider must get the agreement
of the railway undertaking affected before making any modifications (and
obtain any required regulatory approval).
70
69
See article 10(1) of the Implementing Regulation, which requires the service provider to ensure the best
possible matching of all requests and regulations 6(7) and 6(8) of the 2016 Regulations, which requires a
service provider to attempt to meet all requests in so far as possible and to seek to accommodate all
requests for capacity on the basis of demonstrated needs.
70
See regulations 6(7) and 6(8) of the 2016 Regulations and article 10(1) of the Implementing Regulation.
22
Where the railway undertaking has requested access to, or the supply of,
services set out in paragraphs 3 and 4 of Schedule 2 and those services
are offered in the service facility, the Coordination Procedure must also
include the providers of those services.
71
The Coordination Procedure must include consideration by the service
provider of different options enabling it to accommodate the conflicting
requests. These options must, when necessary, include measures to
maximise the capacity available in the service facility to the extent they do
not require additional investment in resources or facilities, such as:
o proposing alternative timing;
o changing opening hours or shift patterns, where possible; and
o allowing access to the facility for self-supply of services, where
self-supply is legally and technically feasible.
If additional investment is required, but the railway undertaking guarantees
to cover the cost of that investment, the service provider should consider
this
72
.
20 Article 10(2) of the Implementing Regulation provides that if capacity is available that
matches the needs of the railway undertaking or the service provider expects such
capacity to become available during or following the Coordination Procedure, the
service provider must not reject those requests for access nor indicate to the railway
undertaking viable alternatives
73
. This means that, where capacity is expected to be
available within this timeframe which will meet an undertaking’s needs, the service
provider must not pre-empt the outcome of the Coordination Procedure but must
complete the Coordination Procedure to attempt to resolve any conflict with affected
parties.
Stage 2 – Deciding upon the request(s):
21 If the Coordination Procedure does not lead to a resolution which accommodates all
requests in a manner agreed with all parties, the service provider must consider the
process for the rejection of requests (or restricting access requested) without the
agreement of the undertaking.
71
See article 10(1) of the Implementing Regulation.
72
Recital 14 of the Implementing Regulation.
73
See article 10(2) of the Implementing Regulation.
23
22 This would include where the conflict remains between two or more requests or
between a request and capacity allocated (where all requests could not be
accommodated without additional investment in resources of facilities). It would also
include where railway undertakings agree on changes which would resolve the
conflict, but where the service provider nevertheless considers that there might be a
viable alternative (which would entitle it to reject the request).
23 In considering which requests it might reject from different railway undertakings, the
service provider must take into account the demonstrated needs of the railway
undertakings.
24 Article 11 of the Implementing Regulation provides that where requests cannot be
accommodated after the coordination procedure, the service provider may determine
priority criteria to allocate capacity between conflicting requests; although the
adoption of priority criteria is not mandatory.
Priority Criteria:
● Any priority criteria must be non-discriminatory and objective and published in
the Service Facility Description. In addition, such priority criteria must also
take into account:
– the purpose of the service facility;
– the purpose and nature of the railway transport services concerned; and
– the objective of securing an efficient use of available capacity.
●
Priority criteria may also take into account the following aspects, as determined
by the service provider:
– existing contracts;
– the intention and ability to use the capacity requested, including
previous failure, if any, to use all or part of allocated capacity and the
reasons for that failure;
– already allocated train paths linked to the requested services;
– priority criteria for allocation of train paths;
– timely submission of requests.
25 Where, having been through the Coordination Procedure and, having considered
demonstrated needs (and, where applicable, through the application of priority
criteria) the service provider proposes to reject a request, the service provider must
inform the railway undertaking without undue delay before going on to consider
24
viable alternatives. If requested by ORR, it must also promptly inform ORR of its
intention
74
.
26 The Implementing Regulation has broadened the requirements for a service provider
to consider viable alternatives. Article 12(2) of the Implementing Regulation requires
the service provider to consider whether there is a viable alternative facility whenever
the service provider proposes to refuse a request, even where the basis for a refusal
is a conflict and the need to make additional investment. However, in such cases the
Implementing Regulation does provide that the service provider is not required to
indicate viable alternatives or proceed to a joint assessment where the railway
undertaking in question has asked it not to
75
.
27 The process for considering viable alternatives is set out below.
28 Where the service provider refuses a request, or grants a request subject to
restrictions, as noted above we expect the decision to be in writing and fully reasoned
and objectively justified.
29 We note that the Implementing Regulation provides that where a railway undertaking
has requested the service provider not to indicate viable alternatives or proceed to
the joint assessment, the service provider may refuse the request and does not have
to provide its decision in writing. However, even where the railway undertaking has
made such a request, we would still generally expect the service provider to explain
its decision in writing. The decision should set out why the request has not been
accommodated following the Coordination Procedure, including setting out any viable
alternatives which are considered to exist (if this is the basis for not accommodating
the request). This is because the decision may still be subject to an appeal.
30 The flowchart at diagram B sets out the indicative process and steps that a service
provider should follow when considering conflicting requests for access to services. It
does not, however, cover every eventuality or circumstance and it is for the service
provider to ensure it complies with the legal requirements under the 2016 Regulations
and the Implementing Regulation.
Constrained capacity
31 Where capacity at a service facility is constrained, we do not consider that the 2016
Regulations create an obligation on the service provider to substitute the railway
undertaking’s services for its own or for those of an existing or planned future user.
74
See article 12(1) of the Implementing Regulation.
75
See article 12(5) of the Implementing Regulation.
25
However, where a service provider considers that it has constrained capacity we
would expect it to:
(1) provide a fully reasoned and objectively justified case explaining the nature of
the capacity constraints;
(2) demonstrate that it has organised its business in a manner that maximises the
available capacity of its service facilities; and
(3) demonstrate that it has examined all options for accommodating the requests.
32 We note that where, following the Coordination Procedure described above, requests
cannot be accommodated and the service facility is close to congestion, ORR may
request that the service provider takes measures aimed at enabling the
accommodation of additional requests for access
76
. Such measures shall be
transparent and non-discriminatory. ORR will only make requests that are reasonable
in all the circumstances, normally after consultation with the service provider.
Viable alternative
33 The requirement to consider whether there is a ‘viable alternative’ when refusing a
request for access only applies to requests for access to, and the supply of, services
described in paragraph 2 of Schedule 2.
The definition of ‘viable alternative’
34 ‘Viable alternative’ is defined in the 2016 Regulations as “…access to another service
facility which is economically acceptable to the railway undertaking, and allows it to
operate the freight or passenger services concerned”. The viable alternative must
therefore be available to rail. This section outlines our understanding. There are two
limbs to the definition and an alternative will only be a viable alternative where both
limbs are satisfied.
35 The first limb is that the service facility must be economically acceptable to the
railway undertaking:
(i) We will expect a railway undertaking to have specified precisely its
requirements for access into a particular facility and the supply of services
it requires. This information will enable the service provider to take a view
on the relevant downstream service against which services of viable
alternative facilities can be tested.
76
See article 10(5) of the Implementing Regulation.
26
(ii) The commercial assessment for determining whether a service facility is a
viable alternative needs to include consideration of all relevant costs and
not just the price for accessing the alternative service facility. Wherever
possible, it should include an assessment of the impact on the railway
undertaking’s operational costs and the profitability of the envisaged
services.
(iii) If use of another service facility was certain to impose a material increase
in the railway undertaking’s costs, such that the railway undertaking could
no longer operate the traffic at a competitive price, then that service facility
would not be a viable alternative.
35. The second limb is that the service facility must allow the railway undertaking to
operate the freight or passenger services concerned:
(iv) An important starting point for a service provider making the case for a
viable alternative will be for it to consider whether any alternative sites are
operationally or logistically capable of replicating the amenity offered by
the service facility to which access is being refused.
(v) This should involve consideration of the physical and technical
characteristics of the facility (such as location, means of access, length of
track and electrification), the operational characteristics of the facility (such
as opening hours, capacity, driver training requirements and the type of
services offered) and the attractiveness and competitiveness of the
services (such as routing, connections to other modes and transportation
time).
(vi) We recognise that there may be instances where there are alternative
service facilities that meet all the criteria required by the railway
undertaking but where a request for access at those facilities may
nevertheless not be granted. Previous refusals of access could be taken
as an indication that this option may not be a viable alternative.
(vii) Under some circumstances self-supply by the railway undertaking could
be regarded as a viable alternative. This would need to be considered
relative to the scale of the access requested and the capital costs involved
for self-supply. We expect that it would only be where the costs were low
or the scale of access represented a significant proportion of the total
capacity at the service facility in question that self-supply is likely to be a
viable alternative.
27
36. Service providers would require a robust rationale for stating that another facility is a
viable alternative, having considered the above issues in detail. Meanwhile, the
Implementing Regulation
77
also recognises that many service facilities cannot be
easily duplicated, given the significant investment involved and the limitations on
where such facilities can be constructed.
The process for considering viable alternatives
38 The Implementing Regulation sets out a process for the railway undertaking and the
service provider to jointly assess whether there are viable alternatives. This process
is explained below. Although the process is set out to apply wherever the service
provider proposes to reject a request or restrict access following the Coordination
Procedure (applicable to conflicting requests), we expect the service provider to take
all reasonable steps to conduct a joint assessment wherever it is required to consider
viable alternatives (including where there is a non-conflicting request).
39 The viable alternative assessment will involve the service provider indicating possible
alternatives (which may include possible alternatives in locations outside the UK
where relevant) on the basis of:
(i) other Service Facility Descriptions;
(ii) information published on a common web portal; and
(iii) any information provided by the railway undertaking.
40 We expect the railway undertaking to provide a detailed and precise description of its
needs when making a request for access, including detailing requirements for access
and for the supply of services (including around operational characteristics) and any
geographical requirements. However, the railway undertaking is not required to
disclose its business strategy and the service provider must respect the commercial
confidentiality of the information provided.
41 When proposing possible alternatives the service provider must take into account, as
a minimum, the following criteria, to the extent that they can be assessed by the
service provider:
(i) substitutability of operational characteristics of the alternative service
facility;
77
See Recital 17 of the Implementing Regulation.
28
(ii) substitutability of physical and technical characteristics of the alternative
service facility;
(iii) clear impact on attractiveness and competitiveness of the railway transport
service envisaged by the railway undertaking;
(iv) estimated additional cost for the railway undertaking.
78
42 Where information on the capacity of the proposed alternative is not publicly
available, the railway undertaking must verify it
79
. [NB. The Implementing Regulation
requires service providers
80
to answer requests for information about available
capacity
81
.]
43 Once it has been provided with the possible alternatives, it is then the railway
undertaking’s role to assess whether using the proposed alternatives will allow it to
operate the envisaged transport service under economically acceptable conditions. It
must then inform the service provider of the outcome of its assessment within a
jointly agreed deadline.
44 Following the joint assessment:
(i) It may be that the service provider and railway undertaking have jointly
identified viable alternatives, in which case this provides a reason for
refusing the request.
(ii) Where the service provider and railway undertaking conclude that no
viable alternative exists, provided it is not possible for the request to be
accommodated without additional investment, the service provider may
refuse the request. Whether or not additional investment would be
required could be the subject of an appeal to ORR.
(iii) If the service provider and railway undertaking do not agree on a viable
alternative, the service provider may refuse the request indicating the
alternatives it considers to be viable. Whether or not there is actually a
viable alternative could be the subject of an appeal to ORR.
45 If the railway undertaking requests the service provider not to proceed to joint
assessment and the service provider is rejecting a request on the basis that there is
78
Article 12(3) of the Implementing Regulation.
79
Article 12(4) of the Implementing Regulation.
80
Of service facilities listed in Schedule 2, par. 2, (b), (c), (d), (f), (g), (h), (i).
81
Article 6(2) of the Implementing Regulation.
29
a viable alternative, we expect the service provider to have made a robust
assessment with the information it has from the railway undertaking and other
information which is available. However, we would not expect a railway undertaking
to make such a request if this is a likely basis for rejection. If the issue of whether or
not there is a viable alternative is to determine whether or not a request is accepted
or rejected, we would expect the railway undertaking to engage fully with any joint
assessment and to cooperate with the service provider as the issue of viable
alternatives is considered. (A failure to do so could prejudice the railway
undertaking’s position in any subsequent appeal.)
46 The flowchart at diagram C sets out the indicative process and steps in considering
the assessment of viable alternatives. It does not, however, cover every eventuality
or circumstance and it is for the service provider to ensure it complies with the legal
requirements under the 2016 Regulations and the Implementing Regulation.
47 A railway undertaking may bring an appeal concerning the entitlements to access
conferred on it by regulation 5 and/or regulation 6. See the chapter on Appeals.
30
Diagram A: Non-conflicting requests for access to, and the
supply of, services
31
Diag
ram B: Conflicting requests for access to, and the supply
of, services
32
Diagram C: Viable alternatives
33
Service facility charges
Introduction
48 This section covers the requirements of the 2016 Regulations with regard to charges
made by service providers for access to, and the supply of, services referred to in
paragraph 2 of Schedule 2. It also covers performance schemes and reservation
charges
82
.
Charges for services
49 The charging requirements for services at service facilities referred to in paragraph 2
of Schedule 2 apply to ‘service providers’. This could include infrastructure managers
in respect of their role as operators of service facilities, as well as those who only
provide services and are not also infrastructure managers.
50 Paragraph 1(6) of Schedul
e 3 of the 2016 Regulations requires that the charge
imposed for track access and the supply of services within these service facilities
must not exceed the cost of providing it, plus ‘a reasonable profit’. We expect the
service provider to be able to demonstrate how charges reflect the cost of providing
access to its service facilities and/or the supply of services within those facilities, if
requested.
51 If the additional or ancillary services referred to in paragraphs 3 and 4 of Schedule 2
are offered by only one service provider, the charge for the supply of those services
must also not exceed the cost of providing the service, plus a reasonable profit
83
.
52 Service providers may publish their charges in different ways, but we expect them to
be open and transparent about charges for services. Service providers should list the
services provided and include their charges methodology either as a set rate of tariffs
(where appropriate) or as a list of the criteria that may affect the charges. Where
services are provided using a list of charges, that list should be easily accessible on a
website (usually the service provider’s website or in the infrastructure manager’s
network statement). We expect the list of charges, or charging criteria, to follow the
principles set out in the 2016 Regulations
84
and to reflect the breakdown of services
provided as set out in Schedule 2.
53 If a service provider publishes a set of charging criteria, it is not necessary for the
service provider to publish detailed figures used to calculate the charges themselves.
82
For IM charges see the section on that here.
83
See paragraph 1(7) of Schedule 3.
84
See regulation 14 and Schedule 3.
34
However, should a railway undertaking seek clarification around charges then it is the
responsibility of the service provider to make available the breakdown of charges in a
transparent manner.
54 In all circumstances we expect service providers to be clear about what criteria may
affect the calculation of charges. For example, the following features of a request for
access to, and the supply of, services are likely to impact on the calculation of the
charge:
(i) type of facility needed;
(ii) length of stay;
(iii) time of day;
(iv) refuelling;
(v) cleaning or other light maintenance services required;
(vi) any charges for electricity and other items such as telecommunications
which are required; and
(vii) technical inspections and specialised maintenance which may be
necessary.
55 The service provider must be able to demonstrate to a railway undertaking that any
fees invoiced to it for the use of the service facility comply with the published criteria
85
and, where applicable, tariffs. We expect service providers to answer all reasonable
requests for access or charging information.
Unused service facilities
56 Regulation 6 of the 2016 Regulations sets requirements for unused facilities to be
made available for lease or rent. Article 15 of the Implementing Regulation adds
detail.
57 Under regulation 6(9) of the 2016 Regulations, where a service facility
86
:
● has not been in use for at least two consecutive years
87
, and
85
See regulation 14(11).
86
Service facilities described in paragraph 2 of Schedule 2 of the 2016 Regulations.
87
According to article 15(2) of the Implementing Regulation, the 2 year period shall start on the day following
the day on which a rail-related service was supplied in the service facility concerned for the last time.
35
● interest by a railway undertaking for access to this facility has been expressed
to the service provider on the basis of demonstrated need,
the service provider must offer the operation of the service facility, or part of it, for
lease as a rail service facility, and publicise this offer.
58 The obligation does not, however, arise if the service provider can demonstrate that
on-going redevelopment work (‘a reconversion process’) reasonably prevents the use
of the service facility by any railway undertaking. Under article 15(6) the owner must
inform ORR of the reconversion process. ORR may request substantiation and if that
is unsatisfactory, ORR may require that the facility, either in whole or in part, is
available for lease or rent.
59 Under article 15(7) the owner of the service facility must publicise on its website a
notice on the availability of that facility for lease or rent. The notice must contain all
the necessary information to enable interested undertakings to submit an offer to
take over operation of the facility in whole, or in part. It must include certain
information as specified in article 15(7). It must also inform ORR
88
and the relevant
infrastructure manager.
60 Where a railway undertaking expresses an interest in such a service facility, we
recommend that it makes an application for track access in parallel. This is to ensure
that where access has been granted to the service facility, railway vehicles can be
accepted on and off the network promptly.
61 In particular, any railway undertaking interested in using a service facility which has
not been in use for at least two consecutive years must express its interest in writing,
and inform ORR, demonstrating the needs of the railway undertaking concerned.
62 Article 15 states that the service provider may then decide to resume operations in
the facility, in a way that satisfies the railway undertaking’s demonstrated needs.
63 Where the service provider is required to offer the operation of the facility for lease, a
notice of the offer (including all necessary information) must be published on the
website and sent to the relevant infrastructure manager and ORR. The notice must in
particular include details of the selection procedure
89
, selection criteria, the main
characteristics of the technical equipment of the service facility and the address and
time limit for the submission of tenders
90
.
88
Track.access@orr.gov.uk
89
The selection procedure must be transparent, non-discriminatory and take into account the objective of
ensuring an optimum effective use of the capacity at the facility.
90
The time limit must be at least 30 days after publication of the notice.
37
5. Appeals
Introduction
1 This chapter is about the appeals process under regulation 32 of the 2016
Regulations.
Appeals to ORR
2 Regulation 32(1) provides applicants (as defined under the 2016 Regulations) with a
right of appeal to ORR.
3 An applicant can appeal to us if it believes it has been unfairly treated, discriminated
against or is in any other way aggrieved. In particular, an applicant can appeal
against decisions of an infrastructure manager, allocation body, charging body,
service provider or a railway undertaking concerning any of the following matters
92
:
● the network statement in its provisional and final versions;
● the information that must be included in the network statement;
● the allocation process and its results;
● the charging scheme, the charging system and the Channel Tunnel charging
framework;
● the level or structure of railway infrastructure charges which the applicant is, or
may be, required to pay;
● the arrangements for access; and
● access to and charging for services.
Who can appeal?
4 Anyone who comes within the definition of an ‘applicant’ has a right of appeal
pursuant to regulation 32(1) and can bring an appeal on the basis that it has been
unfairly treated, discriminated against or is in any other way aggrieved.
5 While an applicant has the right to bring an appeal on one of the matters set out in
regulation 32(2)(a) to (g), not all of these provisions confer rights on an applicant. For
92
See regulation 32(1) and 32(2).
38
example, the right to be granted access to service facilities and the supply of services
pursuant to regulation 6(2) only applies to those who are railway undertakings for the
purpose of the 2016 Regulations.
6 However, in practice, the breadth of the general right of appeal under regulation 32(1)
means that if an applicant believes it has been unfairly treated or discriminated
against or is in any other way aggrieved, it is not precluded from bringing an appeal in
relation to any aspect of the 2016 Regulations, even where the provisions of a
regulation do not extend to applicants more widely. For example, although an
applicant does not have the same entitlement to access as a railway undertaking
under regulation 5 or 6, it should still be treated fairly in relation to any access allowed
by the infrastructure manager or service provider, however limited. Where it
is not, the
applicant would be entitled to bring an appeal in this regard.
Scope
7 An applicant must lodge its appeal by way of an application under regulation 32
where the matter under appeal does not come within the scope of section 17 or 22A
of the Railways Act 1993 (the Act). An appeal will fall outside the scope of section 17
or 22A of the Act where
93
:
● the railway facility to which the appeal relates has been exempted under section
20 of the Act;
● the appeal relates to a rail link facility (as defined under the 2016 Regulations);
or
● the subject matter of the appeal is not within scope of directions which may be
sought under sections 17 or 22A of the Act.
8 Where the matter of an appeal under regulation 32(1) is a matter in relation to which
directions may be sought from ORR under section 17 or 22A of the Act, the applicant
must lodge its appeal by way of an application under the relevant section of the Act,
rather than by way of an application under regulation 32
94
.
9 We have separate published guidance on making an appeal under section 17 or 22A
of the Act, which applicants should refer to as applicable
95
. If an appeal is made
93
See regulation 32(4).
94
See regulation 32(3).
95
See our guidance on ‘Making an Application’.
39
under regulation 32, the affected parties are still free to seek agreement with each
other.
10 The applicant can withdraw its appeal at any time by writing to us with a short
explanation. We will inform all other relevant parties that the appeal has been
withdrawn.
How to make an appeal under regulation 32
11 The applicant should have regard to the relevant chapters of this guidance as
applicable before submitting an application for appeal.
12 An applicant should use Form R32 to make its appeal
96
. The application should
include:
● the applicant’s details;
● the matter under appeal and/or an explanation as to how the applicant has been
unfairly treated, discriminated against or is in any other way aggrieved;
● an explanation as to why sections 17 and 22A of the Act do not apply;
● the details of the respondent
97
and of any interested third parties;
● the grounds on which the appeal is being made, which should include reference
to the applicable regulation(s);
● details of the negotiations/discussions undertaken to date between the parties to
resolve the issue;
● any terms agreed between the parties;
● supporting analysis and evidence;
● any proposed draft agreement (where appropriate);
● any documents incorporated by reference (other than established standard
industry codes or other instruments); and
● any other relevant information to the matter under appeal.
96
https://orr.gov.uk/rail/access-to-the-network/track-access/forms-model-contracts-and-general-approvals.
97
The respondent is the party against whom the appeal is made.
40
13 Further, where a railway undertaking brings an appeal concerning its entitlements to
access under regulation 5 to infrastructure and/or regulation 6 to services, we would
expect the appeal application to include, at a minimum, the following information:
(i) A detailed list of the access being sought (for example time slots, name of
the terminal, port or service to which access is sought, duration, type of
rolling stock, commercial terms, if any).
(ii) An explanation as to why access is needed.
(iii) Confirmation that the railway undertaking holds, or is likely to obtain,
access rights on the connecting network.
(iv) An explanation of why the service provider is competent to supply the level
of
access or type of services being sought.
(v) Where applicable, why it considers that an alternative facility suggested by
the service provider is not a viable alternative.
14 We would expect the service provider to provide relevant information in its written
response to the appeal (see below), for example:
(i) Detailed reasons as to why access has been refused or granted subject to
restrictions.
(ii) Detailed reasons as to why it considers it would have to make investments
in resources or facilities or any relevant capacity issues (including known
capacity constraints on connecting networks) it considers might affect its
ability to accommodate requests.
(iii) Details of any viable alternatives that could be used to supply the required
services, with an explanation as to why they are considered suitable and
supporting evidence, where applicable.
(iv) Any restrictions on access it has proposed (where applicable), with an
explanation as to why they are fair, reasonable, proportionate and
objectively justifiable.
(v) Whether there are any other affected parties and the impact on them of the
request for access.
41
The appeals process
15 Once we have accepted an application for appeal under regulation 32 we will, as
applicable, follow the process set out below:
Stage 1: Liaising with the relevant parties
16 We will, as appropriate, ask for relevant information and initiate a consultation with the
relevant parties within one month of the date of receipt of the appeal
98
. In
determining
whether to ask for relevant information and initiate a consultation, we will take into
account the particular circumstances of the appeal, the issues raised and the
information already provided.
17 Who the relevant parties are will depend on the issue under appeal. It may be just
the
applicant and the respondent, but it could also include stakeholders and/or other
parties such as franchising bodies, concession awarding bodies, other regulators and
funders. We will consider who the relevant parties are on a case-by-case basis. We
will also usually ask the respondent to provide a list of any interested persons (which
should at least include those persons whose consent is needed before the
respondent may enter into an agreement with the applicant).
18 We will send the application for appeal to the respondent within one month of the date
of our receipt of the application and request that the respondent provides written
representations in response to the specific issues raised by the applicant. We will
normally allow 21 days for the respondent to provide its response along with a list of
any interested persons.
19 If there are any interested persons, we will send a copy of the application to such
persons as well as all other relevant parties we have specifically identified and invite
them to make representations within 21 days.
20 We will publish the appeal on our website at the same time or shortly after we send it
to the respondent and invite comments from other third parties. We will usually set a
deadline of 21 days from the date of publication for receipt of any comments.
Stage 2: Requesting further information
21 Where we receive written representations from the respondent, we will send the
applicant a copy of these representations inviting the applicant to make any further
98
Regulation 32(5)(a) and below.
42
written representations in response. Any further response must be provided within the
timeframe specified by us, which will normally be 10 days.
22 Where we receive written representations from other relevant parties we will send a
copy to the applicant and the respondent. We will invite each of them to provide any
comments, normally, within 10 days.
23 In some instances it may also be appropriate or necessary for us to conduct site visits
or speak directly with the parties involved.
24 In complex cases involving several parties we may decide it is necessary to hold a
hearing.
25 We may, from time to time, request or invite further information, clarification or
representations from the parties involved, at our discretion.
26 We may also publish any representations and other responses on our website.
Stage 3: Making the decision
27 Once we have all the information we need we will make a decision on the appeal
based upon the evidence and information provided by the parties, and any
information or evidence gathered by ORR. To the extent relevant and consistent with
the 2016 Regulations, we will consider our section 4 duties under the Act
99
when we
make our decision on the appeal.
28 Once we are satisfied that we have received all relevant information, we will, within a
predetermined and reasonable time, and, in any case within six weeks of the date of
receipt of all relevant information:
● make a decision;
● inform the relevant parties of our decision and our reasons for that decision;
● where appropriate, issue a direction to the infrastructure manager, allocation
body, charging body, service provider or, as the case may be, railway
undertaking, to remedy the situation from which the appeal arose; and
● publish the decision
100
.
99
Section 4 of the Act requires us to balance a number of public interest duties.
100
See regulation 32(5)(b).
43
29 Depending on the nature of the appeal, we may share a draft of the final decision with
the applicant and the respondent for the purpose of verifying certain facts. The
timeframe for this will depend on factors such as market sensitivity.
30 Once the decision is finalised:
● Where we consider that the decision is, or is potentially, market sensitive, we will
normally publish it through an approved Regulatory Information Services
provider.
● Otherwise, we will send a copy of our decision to the applicant, the respondent
and any other relevant parties. We will then publish a copy of our decision on
our website and (where applicable) our public register.
31 Our decision on a regulation 32 appeal is binding on all parties affected by that
decision
101
.
32 Where a person is given a direction pursuant to an appeal under regulation 32, they
are under a duty to comply with and give effect to that direction
102
. We expect parties
to comply with a direction within the timeframe specified in the directions notice. If a
party fails to do so we may take enforcement action under regulation 38, which could
result in a financial penalty against the breaching party.
Provision of information to ORR
33 We expect parties to provide to us all information that we have requested in
connection with the appeal. However, we can, if necessary, exercise our formal
powers under regulation 36 to request information.
34 Regulation 36 provides that the provisions of section 80 of the Act (duty of certain
persons to furnish information on request) will apply if we request information in
connection with our functions under the 2016 Regulations
103
. Section 80 places a
duty on parties to provide us with such information, in such form and manner as we
request, for the purpose of facilitating the performance of our functions under the
2016 Regulations.
35 We can impose a financial penalty on a party that fails or refuses to comply with such
a request for information
104
.
101
See regulation 32(11)(a).
102
See regulation 32(11)(b).
103
Please note that timescales can be different though, as specified by the legislation.
104
See regulation 38.
44
Scope of disclosure in an appeal
36 Our starting point is that there should be as full disclosure as possible between the
parties to an appeal. This ensures that parties are able to properly understand the
content of the appeal, the nature of the representations that are being made and are
given a full and fair opportunity to comment on all representations. We will therefore
disclose all relevant information we receive from a party as a matter of course unless
the disclosing party requests otherwise.
37 ORR is able to disclose information which has been obtained under or by virtue of
any provision of the 2016 Regulations without restriction where disclosure is made for
the purpose of facilitating our functions under the 2016 Regulations
105
. However,
we
will give consideration to requests for non-disclosure.
38 In considering a request for non-disclosure, we will generally apply the test set out in
section 71(2) of the Act. This requires us to have regard to the need for excluding
from publication, so far as that is practicable, any matter which relates to the affairs of
an individual or specifically to the affairs of a particular body where publication of that
matter would or might “…in the opinion of [ORR], seriously and prejudicially affect the
interests...” of that individual or body. We consider that this is also an appropriate test
to apply when considering the scope of disclosure.
39 Where a party does not want all its information disclosed, it must make a request to
ORR for redactions at the same time the information is first provided to us. The
request for redactions should be supported by reasons, including how disclosure of
that information would seriously and prejudicially affect the disclosing party’s
interests. The disclosing party should consider whether it can provide such
information in a more generalised format that can be disclosed.
40 Where a request for non-disclosure of information is made, it will be a matter for ORR
to determine, in our sole discretion, whether to restrict disclosure of that information.
We recognise that there may be circumstances where information a party provides
contains commercially sensitive or confidential information or where the parties are
competitors and disclosure could raise concerns from a competition law perspective.
We will therefore aim to strike a balance between complete transparency and
protecting genuinely commercially sensitive information.
105
Regulation 44 and section 145(2)(ga) of the Railways Act 1993.
45
41 In determining the issue of disclosure we will expect all parties to comply with such
process and timeframes as we may specify to ensure we are able to progress the
appeal in a timely way and in accordance with statutory timeframes.
42 Where an applicant submits an appeal and requests redactions to its application, we
will not consider the application to be complete, and therefore received by ORR for
the purpose of regulation 32(5)(a), until the disclosure issues have been resolved to
our satisfaction.
Appeal-specific issues
43 We have set out below additional procedures we expect applicants to follow in
relation to appeals on certain matters, in accordance with the 2016 Regulations.
Rail link facility and development agreements
44 Where a decision or direction in connection with the determination of an appeal under
regulation 32 would affect a rail link facility or the operation of the development
agreement, we are required to carry out a consultation
106
.
45 Where the Secretary of State makes representations, before making or issuing a
decision or direction, we must consult such interested parties as we consider
appropriate on the Secretary of State’s representations
107
.
Access – viable alternatives
46 When an appeal under regulation 32(1) contests a decision under regulation 6(4) to
refuse a request for access to and the supply of services, our decision must include a
determination as to whether, in respect of the access and provision of services to
which the appeal relates, a viable alternative exists
108
.
47 When an appeal under regulation 32(1) contests a decision to refuse or restrict the
provision of services in circumstances where there are conflicting requests as
described in regulation 6(7), our decision must include a determination, as
appropriate and in respect of the circumstances to which the appeal relates, of:
● whether a viable alternative as described in regulation 6(4) exists;
● whether it is possible to accommodate the conflicting requests on the basis of
demonstrated need; and
106
See regulation 32(6).
107
Regulation 32(7).
108
Regulation 32(8).
46
● whether, and if so what, part of the service capacity must be granted to the
applicant
109
.
Infrastructure capacity
48 Pursuant to regulation 32(10), where an appeal under regulation 32(1) concerns a
refusal by an infrastructure manager or allocation body to allocate infrastructure
capacity, or concerns an appeal against the terms of an offer of infrastructure
capacity, in our decision we must either:
● confirm that no modification of the infrastructure manager or allocation body’s
decision is required; or
● require modification of that decision and issue directions to that effect.
109
Regulation 32(9) and Article 14.
47
Annex: Key Definitions
Some common definitions
The terms used throughout the guidance have the same meanings as in the 2016
Regulations, the Implementing Regulation and the Act unless the context requires
otherwise. Some key definitions used in this guidance are set out below:
Definitions in the 2016 Regulations (as amended) and in the Act
‘Applicant’ is defined in the 2016 Regulations as:
a railway undertaking or an international grouping of railway undertakings or other
persons or legal entities, such as competent authorities under Regulation (EC) No
1370/2007 and shippers, freight forwarders and combined transport operators, with a
public service or commercial interest in procuring infrastructure capacity.
While certain provisions in the 2016 Regulations only confer entitlements and obligations
on railway undertakings, some provisions apply more widely to bodies such as shippers
and freight forwarders. Where the 2016 Regulations apply more broadly, the term
‘applicant’ is used.
Where a party that is not a railway undertaking is considering whether the 2016
Regulations confer any entitlements or obligations on it, it will need to look at whether the
relevant provision applies to ‘applicants’ and whether it falls within that definition.
‘dominant body or firm’ is defined in the 2016 Regulations as:
a body or firm which is active and holds a dominant position in the national railway
transport services market in which the relevant service facility is used.
For an overview of what is a dominant position in the GB national railway transport
services market see ORR’s publication Guidance on ORR’s approach to the
enforcement of the Competition Act 1998 in relation to the supply of services relating
to railways 2016
110
.
‘infrastructure manager’ is defined in the 2016 Regulations
as: “infrastructure manager”
means any body or undertaking that is responsible in particular for—
(a) the establishment, management and maintenance of railway infrastructure, including
traffic management and control-command and signalling; and
(b) the provision with respect to that infrastructure of network services as defined in section
82 of the Act,
110
http://orr.gov.uk/__data/assets/pdf_file/0019/21367/competition-act-guidance.pdf.
48
but, notwithstanding that some or all of the functions of the infrastructure manager on a
network or part of a network may be allocated to different bodies or undertakings, the
obligations in respect of those functions remain with the infrastructure manager except
where the functions and obligations pass to an allocation or charging body by virtue of
regulations 19(4) and 14(9) respectively;
For the purposes of the 2016 Regulations, ORR considers that infrastructure managers
include in particular:
● Network Rail Infrastructure Limited.
● HS1 Limited, in respect of High Speed 1.
● Heathrow Airport Ltd, in respect of the Heathrow Spur.
● Rail for London (Infrastructure) Ltd, in respect of Crossrail’s Central Operating
Section (‘the Crossrail Tunnel’).
● Core Valley Lines.
● The Channel Tunnel Group Limited and France-Manche S.A. (jointly
“Eurotunnel”), in respect of the Channel Tunnel (but see below).
Our view is that operators of heritage railways are not infrastructure managers for the
purposes of the 2016 Regulations. Similarly, operators of private stations are not
infrastructure managers if they do not provide network services (as defined in section 82
of the Act).
The definition of railway infrastructure does not include infrastructure in ports or freight
terminals. In our view, while track leading to a service facility in a port or freight terminal is
part of the rail network and therefore constitutes railway infrastructure, track within such a
service facility is part of the operation of the service facility and therefore does not
constitute ‘railway infrastructure’. This is because the main operation of ports and freight
terminals is concerned with the supply of services,
rather than the provision of train paths.
Consequently, it follows that the operators of ports and terminals are not infrastructure
managers and are therefore not bound by the requirements applicable to infrastructure
managers under the 2016 Regulations. Rather, we consider operators of ports and
terminals to be service providers within the meaning of the 2016 Regulations.
It is possible for an infrastructure manager also to be a service provider, for the purposes
of the 2016 Regulations, where that infrastructure manager also supplies services.
However, it is not possible for a service provider that only supplies services to be
49
regarded as an infrastructure manager.
‘network’ is defined in the Act as:
(a) any railway line, or combination of two or more railway lines, and
(b) any installations associated with any of the track comprised in that line or
those lines,
together constituting a system of track and other installations which is used for and in
connection with the support, guidance and operation of trains.
‘network’ is defined in the 2016 Regulations as meaning:
except in those cases where the context otherwise requires, the entire railway
infrastructure managed by an infrastructure manager.
The effect of this definition is to capture for the purposes of the 2016 Regulations:
● All of the items included in the definition of ‘network’ under the Act (as set out
above); and
● Every other item included in the definition of ‘railway infrastructure’.
Network is
therefore a broad concept under the 2016 Regulations.
‘railway infrastructure’ is defined in the 2016 Regulations as consisting of:
…the items described as “network”, “station” and “track” in section 83 of the Act but
excludes such items-:
(a) which consist of, or are situated on, branch lines and sidings whose
main operation is not directly connected to the provision of train paths;
(b) within a maintenance or goods depot, or a marshalling yard;
(c) within a railway terminal, port, factory, mine, quarry, nuclear site or site
housing electrical plant;
(d) which consist of, or are situated on, networks reserved mainly for local,
historical or touristic use; and
(e) within a military establishment.
‘railway undertaking’ is defined in the 2016 Regulations as:
any public or private undertaking licensed according to [the Recast Directive], the principal
business of which is to provide services for the transport of goods and/or passengers by
rail with a requirement that the undertaking ensure traction; this also includes undertakings
which provide traction only.
In practice railway undertakings will be licensed freight and passenger train operators.
50
‘service facility’ is defined in the 2016 Regulations as: the installation, including ground
area, building and equipment, which has been specially arranged, as a whole or in part, to
allow the supply of one or more of the services listed in paragraph 2, 3 or 4 of Schedule 2;
‘service provider’ is defined in the 2016 Regulations as:
a body or undertaking that supplies any of the services:
(a) to which access is granted by virtue of regulation 6; or
(b) listed in paragraphs 2, 3 or 4 of Schedule 2,
or which manages a service facility used for this supply, whether or not that body or
undertaking is also an infrastructure manager.
It is also the generic term ORR uses in this guidance for the person responsible for
providing access and services at a service facility.
‘station’ is defined in the Act as:
any land or other property which consists of premises used as, or for the purposes of, or
otherwise in connection with, a railway passenger station or railway passenger terminal
(including any approaches, forecourt, cycle store or car park), whether or not the land or
other property is, or the premises are, also used for other purposes.
‘track’ is defined in the Act as:
any land or other property comprising the permanent way of any railway, taken together
with the ballast, sleepers and metals laid thereon, whether or not the land or other
property is also used for other purposes; and any reference to track includes a reference
to:
(a) any level crossings, bridges, viaducts, tunnels, culverts, retaining walls, or
other structures used or to be used for the support of, or otherwise in connection with,
track; and
(b) any walls, fences or other structures bounding the railway or bounding
any adjacent or adjoining property.
Definitions in the Implementing Regulation
The following definitions are set out and specific to the Implementing Regulation:
‘ad hoc request’ means a request for access to a service facility or a rail-related service
that is linked to an ad hoc path request for an individual train path referred to in regulation
24 of the 2016 Regulations.
‘basic service’ means a service supplied in any of the service facilities listed in paragraph
2 of Schedule 2 of the 2016 Regulations.
‘controlling entity’ means a body or firm, which exercises direct or indirect control over an
operator of a service facility, and is also active and holds a dominant position in national
railway transport services markets for which the facility is used, or exercises direct or
51
indirect control over an operator of a service facility and a railway undertaking holding such
a position.
‘coordination procedure’ means a procedure through which the operator of a service
facility and applicants attempt to resolve situations in which requests for access to a
service facility or rail-related services concern the same service facility capacity and are in
conflict.
‘late request’ means a request for access to a service facility or a rail-related service
submitted after the expiry of a deadline for submitting requests defined by the operator of
the facility in question.
‘linked service facilities’ means service facilities which are adjacent to one another and
require passage through one to reach the other.
‘rail-related service’ means a basic, additional or ancillary service listed in points 2, 3 and
4 of Schedule 2 of the 2016 Regulations.
‘reconversion’ means a formal process by which the purpose of the service facility is
changed to a use other than for the supply of rail-related services.
‘service facility description’ means a document which lays down detailed information
necessary for access to service facilities and rail-related services.
‘service facility capacity’ means the potential to use a service facility and supply of a
service, over a given period of time, taking into account the time needed to access and
leave the service facility.
‘self-supply of services’ means a situation where a railway undertaking performs itself a
rail-related service on the premises of a service facility operator, provided that access to
and the use of the facility by that railway undertaking for self-supply of services is legally
and technically feasible; does not endanger the safety of the operations; and the operator
of the service facility concerned offers such a possibility.
52
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fice of Rail & Road 2021
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