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The Railways (Access, Management and Licensing of Railway Undertakings) Regulations 2016

Type Statutory-Instrument

Publication 2016-06-21

Last updated 2024-03-04

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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Made: 21st June 2016

Laid before Parliament: 7th July 2016

Coming into force: 29th July 2016

The Secretary of State for Transport makes these Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 .

The Secretary of State is a Minister designated for the purposes of that section in relation to measures relating to railways and railway transport.

PART 1 — Preliminary

Citation, commencement and extent

1

(1) These Regulations may be cited as the Railways (Access, Management and Licensing of Railway Undertakings) Regulations 2016 and come into force on 29th July 2016.

(2) With the exception of paragraph 5 of Schedule 1, these Regulations do not extend to Northern Ireland.

Amendments and revocations

2

(1) The following instruments are revoked—

(a) the Railways Infrastructure (Access and Management) Regulations 2005 ;

(b) the Railways Infrastructure (Access and Management) (Amendment) Regulations 2009 ; and

(2) Schedule 1 (amendments) has effect.

Interpretation

3

In these Regulations—

“the Act” means the Railways Act 1993 ;

“the 1996 Act” means the Channel Tunnel Rail Link Act 1996 ;

“access rights” means rights of access to railway infrastructure for the purpose of operating a service for the transport of goods or passengers;

“access charges review” means a review of access charges carried out in accordance with Schedule 4A to the Act ;

“ad hoc request” means a request for individual train paths made other than in accordance with the timetable for the capacity allocation process as set out in Schedule 4;

“allocation” means the allocation of railway infrastructure capacity by an infrastructure manager;

“allocation body” means a body or undertaking, other than the infrastructure manager, which is responsible, by virtue of regulation 19(4), for the functions and obligations of the infrastructure manager under Part 5 and Schedule 4;

“alternative route” means another route between the same origin and destination where there is substitutability between the two routes for the operation of the freight or passenger service concerned by the railway undertaking;

“applicant” means a railway undertaking or an international grouping of railway undertakings or other persons or legal entities, such as competent authorities under the Public Service Obligations in Transport Regulations 2023 and shippers, freight forwarders and combined transport operators, with a public-service or commercial interest in procuring infrastructure capacity;

“capacity enhancement plan” means a measure or series of measures with a calendar for their implementation which aim to alleviate the capacity constraints which led to the declaration of an element of railway infrastructure as “congested infrastructure”;

“the Channel Tunnel charging framework” means the charging framework set out in the Annex to the IGC regulation;

“charging body” means a body or undertaking, other than the infrastructure manager, which is responsible, by virtue of regulation 14(9), for the functions and obligations of the infrastructure manager under Part 4 and Schedule 3;

“charging scheme” means the specific charging rules established in accordance with regulation 14 by the Office of Rail and Road or the infrastructure manager;

“charging system” means the system established by an infrastructure manager to determine access charges under regulation 14(2), (4) or (5);

“competent authority” has the same meaning as in regulation 2 of the Public Service Obligations in Transport Regulations 2023;

“congested infrastructure” means an element of railway infrastructure for which demand for infrastructure capacity cannot be fully satisfied during certain periods, even after coordination of the different requests for capacity;

“coordination” means the process through which the infrastructure manager and applicants will attempt to resolve situations in which there are conflicting applications for infrastructure capacity;

“cross-border agreement” means any agreement between the United Kingdom and any other country intended to facilitate the provision of cross-border rail services;

“development agreement” has the same meaning as in the 1996 Act;

“the Directive” means Directive 2012/34/EU of the European Parliament and of the Council of 21st November 2012 establishing a single European railway area (recast) ;

“dominant body or firm” means 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;

“electrical plant” has the same meaning as in the Electricity Act 1989 ;

“factory” has the same meaning as in the Factories Act 1961 ;

“framework agreement” means either—an access contract described in section 18(2)(a) of the Act which satisfies one of the conditions in sub-section (1) of that section; ora legally binding agreement made other than in pursuance of section 17 or 18 of the Act setting out the rights and obligations of an applicant and the infrastructure manager or, as the case may be, allocation body in relation to the infrastructure capacity to be allocated and the charges to be levied over a period in excess of one working timetable period;

“the IGC regulation” means the regulation of the Intergovernmental Commission of 23rd March 2015 transferring economic rail regulation competence from the Intergovernmental Commission to the national regulatory bodies, setting out principles for the cooperation between them and establishing a charging framework for the Channel Fixed Link ;

“infrastructure capacity” means the potential to schedule train paths requested for an element of railway infrastructure for a certain period;

“infrastructure manager” means any body or undertaking that is responsible in particular for—the establishment, management and maintenance of railway infrastructure, including traffic management and control-command and signalling; andthe provision with respect to that infrastructure of network services as defined in section 82 of the Act,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;

“international passenger service” means a passenger service where the train crosses the border between the United Kingdom and a member State and where the principal purpose of the service is to carry passengers between stations located in the United Kingdom and a member State; the train may be joined and/ or split, and the different sections may have different origins and destinations, provided that all carriages cross at least one border;

“military establishment” means an establishment intended for use for naval, military or air force purposes or for the purposes of the Department of the Secretary of State responsible for defence;

“mine” has the same meaning as in the Mines and Quarries Act 1954 ;

“national authority” means the Secretary of State, the Scottish Ministers or the Welsh Ministers;

“network” means, except in those cases where the context otherwise requires, the entire railway infrastructure managed by an infrastructure manager;

“network statement” means the statement required to be prepared and published under regulation 13;

“nuclear site” has the same meaning as in the Energy Act 2013 ;

“public passenger transport services”, “public service contract” and “public service operator” have the same meaning as in regulation 2 of the Public Service Obligations in Transport Regulations 2023;

“quarry” has the same meaning as in the Quarries Regulations 1999 ;

“the Office of Rail and Road” means the body established under section 15 of the Railways and Transport Safety Act 2003 ;

“rail link facility” has the same meaning as in section 17(5) of the 1996 Act, except that rail link facility also includes any rail maintenance depot which provides maintenance services primarily for rail vehicles providing services on the rail link (as defined in section 56 of the 1996 Act) to which the rail access is via that rail link;

“railway infrastructure” consists of the items described as “network”, “station” and “track”, in section 83 of the Act , but excludes such items—which consist of, or are situated on, branch lines and sidings whose main operation is not directly connected to the provision of train paths;within a maintenance or goods depot, or a marshalling yard;within a railway terminal, port, factory, mine, quarry, nuclear site or site housing electrical plant;which consist of, or are situated on, networks reserved mainly for local, historical or touristic use; andwithin a military establishment;

“railway undertaking” means any public or private undertaking licensed according to the Railway (Licensing of Railway Undertakings) Regulations 2005, 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;

“reasonable profit” means a rate of return on own capital that takes account of the risk, including that to revenue, or the absence of such risk, incurred by the operator of the service facility and is in line with the average rate for the sector concerned in recent years;

“regional” means, in relation to a transport service, such a service whose principal purpose is to meet the transport needs of a region, including a cross-border region;

“Regulation (EU) No 913/2010” means Regulation (EU) No 913/2010 of the European Parliament and of the Council of 22nd September 2010 concerning a European rail network for competitive freight ;

“relevant public service contract” means a public service contract under which a relevant public service operator provides public passenger transport services, the route or routes of which overlap with the route of an international passenger service notified to the Office of Rail and Road under regulation 19(7);

“relevant public service operator” means a public service operator providing public passenger transport services, the route or routes of which overlap with the route of an international passenger service notified to the Office of Rail and Road under regulation 19(7);

“service facility” means 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” means a body or undertaking that supplies any of the services—to which access is granted by virtue of regulation 6; orlisted in paragraph 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;

“train path” means the infrastructure capacity needed to run a train between two places over a given period;

“tunnel system” has the same meaning as in the Channel Tunnel Act 1987 ;

“urban” or “suburban” means, in relation to a transport service, such a service whose principal purpose is to meet the transport needs of an urban centre or conurbation, including a cross-border conurbation, together with transport needs between such a centre or conurbation and surrounding areas;

“viable alternative” means access to another service facility which is economically acceptable to the railway undertaking, and allows it to operate the freight or passenger services concerned;

“working day” means any day which is not a Saturday, Sunday, Good Friday, Christmas Day or a bank holiday under the Banking and Financial Dealings Act 1971 in England and Wales or Scotland;

“working timetable” means the data defining all planned train and rolling-stock movements which will take place on the relevant railway infrastructure during the period for which it is in force; and

“working timetable period” means the calendar year commencing at midnight on the second Saturday in December.

Scope

4

(1) These Regulations apply to domestic and international rail traffic.

(2) Subject to paragraphs (3) and (6), Parts 2 and 3 (save for regulation 13), regulations 14(9) and (10), 15(1) to (6), 19(4), 33 and Schedule 2 lay down the rules applicable to—

(a) the management of railway infrastructure; and

(b) the rail transport activities of railway undertakings.

(3) The provisions referred to in paragraph (2) do not apply to railway undertakings whose activity is 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.

(4) Notwithstanding paragraph (3), the following regulations apply where a railway undertaking referred to in that paragraph 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—

(a) regulation 8;

(b) regulation 9, with regard to the relationship between the railway undertaking and the undertaking or entity which controls it, directly or indirectly; and

(5) Subject to paragraphs (6), (7) and (8), regulation 13, Parts 4 to 6 and Schedules 3 to 5 lay down the principles and procedures applicable to—

(a) the setting and collection of railway infrastructure charges; and

(b) the allocation of railway infrastructure capacity.

(6) The following provisions do not apply to the networks listed in paragraph (7)—

(a) regulation 6;

(b) regulation 10;

(d) regulation 12(1), (2) and (3);

(e) regulation 13;

(f) Parts 4 to 6; and

(g) Schedules 2 to 5.

(7) The networks referred to in paragraph (6) are—

(a) local and regional stand-alone networks for passenger services on railway infrastructure;

(b) networks intended only for the operation of urban or suburban rail passenger services;

(c) until such time as capacity is requested by another applicant, regional networks used for regional freight services solely by a railway undertaking referred to in paragraph (3); and

(d) networks—

(i) situated within a factory, nuclear site, or site housing electrical plant;

(ii) within a mine or quarry;

(iii) used solely in connection with the carrying out of any building works; or

(iv) within a military establishment,

that are used only by the person responsible for that network for the purposes of freight operations connected with the premises or building works referred to in this sub-paragraph.

(8) With the exception of regulations 5, 9(1) and (3), 19(14) and (16)(b), 33 and 36 (so far as it relates to regulation 33), these Regulations do not apply to undertakings the business of which is limited to providing solely shuttle services for road vehicles through undersea tunnels or to transport operations in the form of shuttle services for road vehicles through such tunnels.

(9) Parts 6 and 8 and Schedule 1 apply to all matters within—

(a) any part of the scope of Parts 2 to 5 and Schedules 2 to 5; and

(b) the Channel Tunnel (International Arrangements) (Charging Framework and Transfer of Economic Regulation Functions) Order 2015 .

PART 2 — Access to Railway Infrastructure and Services

Access rights

5

(1) A railway undertaking must be granted, on equitable, non-discriminatory and transparent conditions, access rights to such railway infrastructure as may be necessary for the purpose of operating all types of rail freight, or international passenger, services.

(2) The access rights described in paragraph (1) include access to railway infrastructure connecting the service facilities referred to in paragraph 2 of Schedule 2.

(3) The access rights described in paragraph (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.

(4) The access rights of a railway undertaking for the purpose of the operation of an international passenger service include the right to pick up passengers at any station located on the international route and set them down at another, including where both stations are located in the United Kingdom.

(5) The access rights conferred by paragraphs (1) to (4) are exercisable subject to the provisions of regulation 33, and to paragraph (6).

(6) Subject to paragraph (7), the Office of Rail and Road may limit the access rights granted by this regulation on services between a place of departure and a destination which are covered by one or more public service contracts ....

(7) The access rights granted under paragraph (4) must not be restricted except where the exercise of such rights would compromise the economic equilibrium of a public service contract.

(8) It is the duty of the infrastructure manager to ensure that the entitlements conferred by this regulation are honoured.

(9) Without prejudice to the generality of regulation 32, if a railway undertaking is denied the entitlements conferred on it by this regulation other than pursuant to a decision of the Office of Rail and Road under paragraph (6) or regulation 33, that railway undertaking has a right of appeal to the Office of Rail and Road in accordance with regulation 32.

Access to services

6

(1) An infrastructure manager must supply to all railway undertakings, in a non-discriminatory manner, the minimum access package described in paragraph 1 of Schedule 2.

(2) Subject to paragraph (4) a service provider must supply to all railway undertakings, in a non-discriminatory manner, access, including track access, to service facilities and the supply of services described in paragraph 2 of Schedule 2.

(3) Requests by railway undertakings for access to, and the supply of, services described in paragraph 2 of Schedule 2 must be answered within a reasonable time limit as stipulated by the Office of Rail and Road.

(4) Subject to paragraph (7), where a service provider supplies any of the services described in paragraph 2 of Schedule 2, a request for access to, and the supply of, such services 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.

(5) Where—

(a) a request referred to in paragraph (3) concerns access to and the supply of services described in paragraph 2(a), (b), (c), (d), (e), (f) and (i) of Schedule 2; and

(b) such request is made to a service provider which is under the direct or indirect control of a dominant body or firm,

the service provider must justify, in writing, any decision to refuse such a request, and provide information about the viable alternative described in paragraph (4).

(6) Paragraph (4) does not oblige the service provider to make investments in resources or facilities in order to accommodate all requests by railway undertakings.

(7) Where a service provider encounters a conflict between different requests for access to, and the supply of, services described in paragraph 2 of Schedule 2, it must attempt to meet all requests in so far as possible.

(8) If no viable alternative is available, and it is not possible to accommodate all requests for capacity for the relevant facility on the basis of demonstrated needs, the applicant may appeal to the Office of Rail and Road.

(9) Where a service facility described in paragraph 2 of Schedule 2 has not been in use for at least two consecutive years and 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—

(a) offer the operation of the service facility, or part of it, for lease as a rail service facility, and,

(b) publicise this offer.

(10) Paragraph (9) does not apply if the service provider can demonstrate that ongoing redevelopment work reasonably prevents the use of the service facility by any railway undertaking.

(11) Where the service provider offers to supply any of the services described in paragraph 3 of Schedule 2 as an additional service it must, in response to a request from a railway undertaking, supply the services to that railway undertaking in a non-discriminatory manner.

(12) A railway undertaking may request the supply of any of the services described in paragraph 4 of Schedule 2 from a service provider but that service provider is under no obligation to supply the services requested; where the service provider does offer to supply such services, it must do so in a non-discriminatory manner.

(13) Without prejudice to the generality of regulation 32, if a railway undertaking is denied the entitlements conferred on it by this regulation, that railway undertaking has a right of appeal to the Office of Rail and Road in accordance with regulation 32.

(14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Cross-border agreements

7

(1) The Secretary of State must ensure that provisions contained in cross-border agreements do not discriminate between railway undertakings, or restrict their freedom to operate cross-border services.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 3 — Infrastructure Management and Independence of Undertakings

Management independence

8

(1) Railway undertakings which are directly or indirectly owned or controlled by a national authority must, in their management, administration and internal control over administrative, economic and accounting matters, maintain the status of an independent operator and hold, in particular, assets, budgets and accounts which are separate from those of the State.

(2) Subject to the requirements set out in Parts 4 and 5 and Schedules 3 and 4 about the determination of railway infrastructure charges and the allocation of infrastructure capacity, an infrastructure manager must be responsible for its own management, administration and internal control.

Separation of accounts

9

(1) Any body which incorporates the functions of both infrastructure manager and railway undertaking must—

(a) prepare and publish separate profit and loss accounts and balance sheets in respect of business relating to the—

(i) provision of transport services as a railway undertaking; and

(ii) management of railway infrastructure; and

(b) ensure that public funds granted to such a body are not transferred between that part of the body responsible for the provision of transport services and that responsible for the management of railway infrastructure.

(2) Any body which conducts business activities relating to the provision of both rail freight transport services and passenger transport services must—

(a) prepare and publish separate profit and loss accounts and balance sheets in respect of each of these business activities;

(b) account separately for public funds granted for activities relating to the provision of transport services as public service remits ...; and

(c) ensure that public funds granted as described in sub-paragraph (b) are not transferred to activities relating to the provision of other transport services, or any other business.

(3) Accounts for the areas of activity described in paragraphs (1) and (2) must be kept in such a way as to allow for monitoring of—

(a) the prohibition set out in those paragraphs relating to the transfer of public funds; and

(b) the use of income from railway infrastructure charges and surpluses from other commercial activities.

Independence of service providers from dominant bodies and firms

10

(1) Where the service provider of a service described in paragraph 2 of Schedule 2 is under direct or indirect control of a dominant body or firm, it must hold separate accounts from that body or firm, including separate balance sheets and profit and loss accounts.

(2) Where the service provider of a service described in paragraph 2(a), (b), (c), (d), (e), (f) and (i) of Schedule 2 is under direct or indirect control of a dominant body or firm, it must be independent in organisational and decision making terms from that body or firm.

(3) Paragraph (2) does not require the establishment of a separate legal entity to provide such services, and may be fulfilled by the formation of distinct divisions within a single legal entity.

(4) Where any of the services referred to in paragraph (2) are provided, and the operation of the service facility is ensured by either—

(a) an infrastructure manager; or

(b) a service provider under the direct or indirect control of an infrastructure manager,

the requirements of paragraphs (1) and (2) are met if regulations 14(9) and 19(4) are complied with.

Indicative railway infrastructure strategy

11

(1) The Secretary of State must, by 19th December 2019 and after consultation with interested parties, publish an indicative railway infrastructure strategy for England and Wales which must—

(a) be drafted with a view to meeting future mobility needs in terms of the maintenance, renewal and development needs of the railway infrastructure in England and Wales;

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) The Scottish Ministers must, by 19th December 2019 and after consultation with interested parties, publish an indicative railway infrastructure strategy for Scotland which must—

(a) be drafted with a view to meeting future mobility needs in terms of the maintenance, renewal and development needs of the railway infrastructure in Scotland;

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The strategies referred to in paragraphs (1) and (2) must—

(a) be in respect of such period as the Secretary of State must determine; and

(b) be renewed following this period, in respect of successive periods of time, the length and commencement of which the Secretary of State must determine.

(4) The strategies described in paragraphs (1) and (2) are to be known as the indicative railway infrastructure strategy for Great Britain.

(5) In paragraph (2), the term “interested parties” includes the Secretary of State.

Business Plans

12

(1) Each infrastructure manager must draw up a business plan which is designed for the purpose of ensuring—

(a) optimal and efficient use, provision and development of the railway infrastructure; and

(b) financial balance.

(2) The plan referred to in paragraph (1) must—

(a) include details of investment and financial programmes;

(b) provide the means by which the objectives set out in paragraph (1) are to be achieved; and

(3) Before it is approved the infrastructure manager must ensure that applicants known to it and, upon their request, potential applicants have access to the relevant information and are given the opportunity to express their views on the content of the draft business plan regarding the conditions for access and use, and the nature, provision and development of the railway infrastructure.

(4) Each railway undertaking must draw up a business plan, which must include its investment and financing programmes, and which is designed for the purpose of ensuring—

(a) financial equilibrium; and

(b) other technical, commercial and financial management objectives.

(5) The plan referred to in paragraph (4) must provide the means by which the objectives set out in that paragraph are to be achieved.

(6) The Office of Rail and Road must, at least once a year, request confirmation that a business plan has been produced in accordance with paragraphs (1) and (4), and each infrastructure manager or, as the case may be, railway undertaking, to whom such a request is made, is under an obligation to comply with that request.

(7) For the purposes of regulation 36, a request by the Office of Rail and Road in accordance with paragraph (6) is to be treated as a request for information.

Network Statement

13

(1) The infrastructure manager must, following consultation with all interested parties, develop and publish a network statement containing the information relating to its network described in paragraph (4).

(2) Where, by virtue of regulation 14(9) or 19(4) a charging body or, as the case may be, allocation body, is responsible for the functions of the infrastructure manager in Parts 4 or 5, that charging body or allocation body must provide the infrastructure manager with such information as is necessary to enable that infrastructure manager to—

(a) include the information described in paragraph (4) in the network statement; and

(b) keep the network statement up to date in accordance with paragraph (7).

(3) A service provider who is not the infrastructure manager must provide the infrastructure manager of the railway infrastructure to which the relevant service facility is connected with such information as is necessary to enable that infrastructure manager to—

(a) include the information described in paragraph (4)(b) in the network statement; and

(b) keep the network statement up to date in accordance with paragraph (7).

(4) The information referred to in paragraph (1) is—

(a) a section setting out the nature of the railway infrastructure which is available to applicants and the conditions of access to it;

(b) information on access to and charges for the supply of service facilities listed in Schedule 2, including those service facilities which are provided by only one supplier, and including information on technical access conditions, or details of a website where such information is available free of charge in electronic format;

(c) a description of the charging principles and tariffs, including appropriate details of the charging scheme, framework, methodology, rules and, where applicable, scales used in relation to the application of regulations 14, 16 and 17, of Schedule 3 and of the Channel Tunnel charging framework, as regards both costs and charges;

(d) information relating to the performance scheme referred to in regulation 16;

(e) the list of market segments to be published under paragraph 2(9) of Schedule 3, subject to any amendments made by the Office of Rail and Road;

(f) information about procedures for dispute resolution and appeals relating to matters of access to railway infrastructure and services and to the performance scheme referred to in regulation 16;

(g) a description of the principles and criteria for the allocation of infrastructure capacity, setting out the general capacity characteristics of the railway infrastructure available and any restrictions on its use, including likely capacity requirements for maintenance;

(h) the procedures and deadlines in the capacity allocation process and specific criteria employed in that process, in particular—

(i) the procedures according to which applicants may request infrastructure capacity from the infrastructure manager;

(ii) the requirements governing applicants under regulation 19(17);

(iii) the schedule for the application and allocation processes, and the procedures to be followed to request information about that schedule;

(iv) the procedures for scheduling planned and unforeseen maintenance work;

(v) principles governing the coordination process regarding requests for infrastructure capacity referred to in regulation 23, which must reflect the difficulty of arranging international train paths and the effect that modification of such paths might have on other infrastructure managers;

(vi) the dispute resolution procedure established as part of the coordination process in accordance with regulation 23(7);

(vii) information about the procedures established in accordance with regulation 20(4) for the allocation of infrastructure capacity at an international level, including information about the membership and methods of operation of any representative groups, and all relevant criteria used to assess and allocate infrastructure capacity which crosses more than one network;

(viii) the procedures to be followed and criteria used where railway infrastructure is congested infrastructure, including any priority criteria for the allocation of congested infrastructure set in accordance with regulation 26(5) and (6);

(ix) details of restrictions on the use of railway infrastructure;

(x) the threshold quota to be applied by the infrastructure manager in requiring a train path to be surrendered under regulation 29(1); and

(xi) the conditions relating to previous levels of utilisation of capacity to be taken into account by the infrastructure manager in determining priorities in accordance with regulation 29(3);

(i) details of any section of railway infrastructure which has been designated for use by specified types of rail services in accordance with regulation 25;

(ia) where an infrastructure manager does not propose framework agreements and does not have such agreements in operation, a statement to that effect;

(j) the measures taken by the infrastructure manager to ensure fair treatment of rail freight services and international services, and in responding to ad hoc requests for infrastructure capacity;

(k) a template form for requests for capacity and detailed information about the allocation procedures for international train paths;

(l) information relating to applications for —

(i) a licence, as published under regulation 6(2) of the Railway (Licensing of Railway Undertakings) Regulations 2005 ;

(ii) a rail safety certificate issued in accordance with regulation 7 of the Railways and Other Guided Transport Systems (Safety) Regulations 2006 ; and

(iii) a Part B certificate issued by the Intergovernmental Commission under Article 39(ii) of the Schedule to the Channel Tunnel (Safety) Order 2007 ;

or, as an alternative to the information described in (i) to (iii), a reference to a website where such information is made available free of charge in electronic format;

(m) a model agreement for the conclusion of a framework agreement between an infrastructure manager and an applicant in accordance with regulation 21; and

(n) the criteria to determine failure to use capacity published under regulation 17(3)(a).

(5) The information provided under paragraph (4)(a) must be made consistent, on an annual basis with, or must refer to, the register of infrastructure published in accordance with regulation 35 of the Railways (Interoperability) Regulations 2011.

(6) The information provided under paragraph (4)(b) and (c) must include—

(a) information on changes to charges referred to in that paragraph already decided upon or foreseen in the next five years, if available; and

(b) information on charges as well as other relevant information on access applying to services listed in Schedule 2 which are provided only by one supplier.

(7) The infrastructure manager must keep the network statement up to date and modify it as necessary.

(8) The infrastructure manager must publish the network statement in at least two official languages of the European Union.

(9) The infrastructure manager must publish the network statement not less than four months before the deadline for applications for infrastructure capacity as described under paragraph 2(1) of Schedule 4.

(10) Any fee charged by the infrastructure manager for the provision, on request, of a copy of the network statement must not exceed the cost of producing that copy.

(11) The content of the network statement must be made available free of charge in electronic format on the web portal of the infrastructure manager and must be accessible through a common web portal.

(12) The common web portal referred to in paragraph (11) must be set up by the infrastructure manager in the framework of its cooperation with other infrastructure managers ..., in accordance with regulations 18 and 20.

(13) If the information required under paragraph (2) or (3) is not provided to the satisfaction of the infrastructure manager, the infrastructure manager may refer the matter to the Office of Rail and Road for a determination as to whether additional information must be supplied.

(14) Where a matter is referred to the Office of Rail and Road in accordance with paragraph (13), it is the duty of that Office to make the determination within such period as is reasonable in all the circumstances, and any such determination is binding on all parties.

PART 4 — Infrastructure Charges

Establishing, determining and collecting charges

14

(1) Subject to paragraph (3), the Office of Rail and Road must establish the charging framework and the specific charging rules governing the determination of the fees to be charged in accordance with paragraphs (6) and (7).

(2) Subject to paragraphs (3) and (9), the infrastructure manager must—

(a) determine the fees to be charged for use of the railway infrastructure in accordance with the charging framework, the specific charging rules, and the principles and exceptions set out in Schedule 3; and

(b) collect those fees.

(3) Paragraphs (1) and (2) do not apply where the railway infrastructure to which the charge relates is a rail link facility or is part of the tunnel system.

(4) Where paragraph (3) applies because the railway infrastructure to which the charge relates is a rail link facility, the Secretary of State must establish the charging framework through the development agreement, and the infrastructure manager must, subject to paragraph (9)—

(a) establish the specific charging rules governing the determination of the fees to be charged in accordance with paragraph (6);

(b) determine the fees to be charged for the use of the railway infrastructure in accordance with the charging framework, the specific charging rules and the principles and exceptions set out in Schedule 3; and

(5) Where paragraph (3) applies because the railway infrastructure to which the charge relates is part of the tunnel system the infrastructure manager must, subject to paragraph (9)—

(a) establish the specific charging rules in accordance with Article 2 of the Channel Tunnel charging framework;

(b) determine the fees to be charged for use of the infrastructure in accordance with the Channel Tunnel charging framework, the specific charging rules and the principles and exceptions set out in Schedule 3; and

(6) Subject to the provisions in paragraphs (1) to (5), the infrastructure manager must—

(a) charge fees for use of the railway infrastructure for which the infrastructure manager is responsible; and

(b) utilise such fees as are received to fund the infrastructure manager's business.

(7) A service provider must—

(a) charge fees for the use of a service facility for which the service provider is responsible; and

(b) utilise such fees as are received to fund the service provider's business.

(8) Applicants must, subject to the right of appeal to the Office of Rail and Road provided in regulation 32, pay such fees as are charged by the infrastructure manager or service provider under paragraphs (6) and (7) for use of the railway infrastructure or service facility.

(9) Subject to paragraph (10), if the infrastructure manager in its legal form, organisation or decision-making functions, is not independent of any railway undertaking, the infrastructure manager must ensure that the functions referred to in this Part and Schedule 3 are performed by a charging body that is independent in its legal form, organisation and decision-making from any railway undertaking.

(10) The separation required by paragraph (9) does not apply to the function of the collection of fees charged in accordance with paragraph (2)(b), (4)(c), and (5)(c).

(11) The infrastructure manager or service provider must be able to demonstrate to each railway undertaking that any fees invoiced to it under paragraphs (6) or (7) comply with the methodology, rules and, where applicable, scales laid down in the network statement.

(12) Subject to paragraph (13), where information about such fees is necessary for the Office of Rail and Road to carry out its functions under regulations 31, 32, 34 and 35 and Schedule 5 and is requested by the Office of Rail and Road, the infrastructure manager or service provider must supply the information requested.

(13) The infrastructure manager must respect the commercial confidentiality of information provided to it by applicants for infrastructure capacity.

Infrastructure costs and accounts

15

(1) Subject to section 2 of the Channel Tunnel Act 1987 , the authorities designated by paragraphs (2) to (4) must, in the case of the railway infrastructure in relation to which they are designated by those paragraphs, ensure, in the way set out in the relevant paragraph, that, under normal business conditions and over a reasonable time period which must not exceed five years, the accounts of an infrastructure manager at least balance—

(a) income from railway infrastructure charges;

(b) surpluses from other commercial activities;

(d) state funding, including, where appropriate, advance payments from the state,

with railway infrastructure expenditure.

(2) For the purposes of paragraph (1), the Office of Rail and Road is designated in relation to railway infrastructure subject to an access charges review, and must discharge its obligations under that paragraph through that review.

(3) For the purposes of paragraph (1), the Secretary of State is designated in relation to a rail link facility, and must discharge obligations under that paragraph through the development agreement.

(4) For the purposes of paragraph (1), the Office of Rail and Road is designated in relation to railway infrastructure that is not covered by paragraphs (2) or (3) and has, in order to discharge its obligations under that paragraph, the power to issue such directions limiting, to any extent necessary, an infrastructure manager's ability to finance infrastructure expenditure out of borrowed funds.

(5) Without prejudice to the right of any person to make an application to the court under Part 54 of the Civil Procedure Rules 1998 , it is the duty of any person to whom a direction is given under paragraph (4) to comply with and give effect to that direction.

(6) The infrastructure manager must enter into an agreement with the Secretary of State or, in the case of the tunnel system, British Railways Board , which must fulfil the basic parameters of Schedule 4A, and cover a period of not less than five years.

(7) The Office of Rail and Road must, with due regard to safety and to maintaining and improving the quality of the infrastructure service, provide infrastructure managers with incentives to reduce the costs of provision of railway infrastructure and the level of access charges.

(8) The Office of Rail and Road must—

(a) in the case of a rail link facility, exercise its rights and responsibilities under or by virtue of the relevant development agreement; and

(b) in any other case, exercise its functions under the Act,

in order to ensure that the requirements set out in paragraph (7) are complied with.

(9) In fulfilling its obligations under paragraph (8), the Office of Rail and Road must base its decisions on an analysis of the achievable cost reductions.

(10) The infrastructure manager must develop and maintain a register of its assets and the assets it is responsible for managing insofar as this information is required to assess any funding needed to repair or replace such assets.

(11) The register referred to in paragraph (10) must be accompanied by details of expenditure on renewal and upgrading of the railway infrastructure.

(12) The infrastructure manager must establish a method for apportioning costs to the different categories of services offered to railway undertakings, which must be updated from time to time on the basis of best international practice.

(13) Where required by the Office of Rail and Road, the infrastructure manager must seek prior approval for the method for apportioning costs referred to in paragraph (12).

Performance scheme

16

(1) The infrastructure manager must establish a performance scheme as part of the charging system to encourage railway undertakings and the infrastructure manager to minimise disruption and improve the performance of the network.

(2) The performance scheme referred to in paragraph (1) may include—

(a) penalties for actions which disrupt the operation of the network;

(b) compensation for undertakings which suffer from disruption; and

(3) The performance scheme referred to in paragraph (1) must be based on the basic principles listed in paragraph 7 of Schedule 3 and must apply in a non-discriminatory manner throughout the network to which that scheme relates.

(4) The infrastructure manager must, as soon as possible, communicate to the railway undertaking a calculation of payments due under the performance scheme.

(5) A calculation under paragraph (4) must encompass all delayed train runs within a period of at most one month.

(6) Without prejudice to existing appeal procedures and to the right of appeal under regulation 32, in the case of disputes relating to the performance scheme, a dispute resolution system must be made available in order to settle such matters promptly.

(7) The dispute resolution system described in paragraph (6) must be impartial towards the parties involved and, if this system is applied, a decision must be reached within a time limit of 10 working days.

(8) Once a year, the infrastructure manager must publish the annual average level of performance achieved by the railway undertakings on the basis of the main parameters agreed in the performance scheme.

Reservation charges

17

(1) The infrastructure manager may levy an appropriate charge (“reservation charge”) for capacity that is requested but not used.

(2) Where the infrastructure manager makes provision for a reservation charge to be imposed, that charge—

(a) must provide incentives for efficient use of capacity; and

(b) is mandatory in the case of a regular failure by an applicant to use the paths, or part of the paths, allocated to them.

(3) Where provision for a reservation charge has been made—

(a) the infrastructure manager must publish in its network statement the criteria used to determine the failure to use allocated paths; and

(b) the Office of Rail and Road must control such criteria in accordance with regulations 32 and 34.

(4) The infrastructure manager must provide, at the request of any interested party, information about the infrastructure capacity allocated to applicants.

Cooperation in relation to charging systems on more than one network

18

(1) The infrastructure manager must cooperate with other infrastructure managers to enable the application of efficient charging schemes, and must associate with them to coordinate the charging or to charge for the operation of train services which cross more than one network , including train services which cross between a network in the United Kingdom and a network in the European Union.

(2) The infrastructure manager must, in particular, aim to guarantee the optimal competitiveness of international rail services and ensure the efficient use of the networks; to this end the infrastructure manager must cooperate with other infrastructure managers to establish appropriate procedures, subject to the rules set out in these Regulations.

(3) For the purpose of paragraphs (1) and (2) the infrastructure manager must cooperate with other infrastructure managers to enable mark-ups (as referred to in Schedule 3, paragraph 2) and performance schemes (as referred to in regulation 16) to be efficiently applied for traffic crossing more than one network , including traffic crossing between a network in the United Kingdom and a network in the European Union.

PART 5 — Allocation of Infrastructure Capacity

Capacity allocation

19

(1) Subject to paragraph (2), whilst respecting the requirements for management independence stipulated in regulation 8, the Office of Rail and Road or, in the case of a rail link facility, the Secretary of State, may establish a framework for the allocation of infrastructure capacity.

(2) The framework for the allocation of capacity referred to in paragraph (1) must, in the case of railway infrastructure comprised in a freight corridor established under Regulation (EU) No 913/2010 , be defined by the executive board of that corridor, within the meaning of that Regulation, and, in such a case, paragraph (1) does not apply.

(3) The infrastructure manager must, subject to paragraph (4), be responsible for the establishment of specific capacity allocation rules and for the process of allocating infrastructure capacity in respect of the railway infrastructure for which it has responsibility.

(4) If the infrastructure manager, in its legal form, organisation or decision-making functions, is not independent of any railway undertaking, the infrastructure manager must ensure that the functions referred to in this Part and Schedule 4 are performed by an allocation body that is independent in its legal form, organisation and decision-making from any railway undertaking.

(5) Subject to paragraph (11), any applicant may apply to the infrastructure manager for the allocation of infrastructure capacity.

(6) In order to use such capacity, an applicant which is not a railway undertaking must appoint a railway undertaking to conclude a contract with the infrastructure manager in accordance with paragraph (14); this is without prejudice to the right of the applicant to conclude an agreement with the infrastructure manager under regulation 22(1).

(7) An applicant applying for infrastructure capacity with a view to operating an international passenger service must give notice of that fact to the infrastructure manager concerned and to the Office of Rail and Road and provide such information as the Office of Rail and Road may reasonably require or prescribe.

(8) When the Office of Rail and Road receives a notice from an applicant under paragraph (7), it must provide—

(a) any competent authority that has awarded a rail passenger service defined in a relevant public service contract;

(b) any railway undertaking which is a relevant public service operator; and

(c) any other competent authority with a right to limit access along the route of the international passenger service notified under paragraph (7),

with a copy of the information in relation to that service provided to it in accordance with that paragraph.

(9) The infrastructure manager must ensure that the allocation process is conducted in accordance with the timetable set out in Schedule 4.

(10) Subject to paragraph (12), an applicant who has been granted capacity by the infrastructure manager, whether that capacity is in the form of—

(a) a framework agreement made in accordance with regulation 21 specifying the characteristics of the infrastructure capacity granted; or

(b) specific infrastructure capacity in the form of a train path,

must not trade that capacity with another applicant or transfer it to another undertaking or service.

(11) Any person who trades in capacity contrary to the provisions of paragraph (10) is not entitled to apply for capacity under paragraph (5) for the period of the working timetable period to which the allocation of capacity transferred related.

(12) The use of capacity by a railway undertaking on behalf of an applicant who is not a railway undertaking, in order to further the business of that applicant, is not a transfer for the purposes of paragraph (10).

(13) The infrastructure manager must not allocate capacity in the form of specific train paths for any period in excess of one working timetable period.

(14) Any railway undertaking engaged in rail transport services must conclude the necessary agreements under public or private law with the infrastructure manager of the railway infrastructure used.

(15) The respective rights and obligations of infrastructure managers and applicants in respect of any allocation of capacity must be laid out in a contract.

(16) The infrastructure manager must—

(a) ensure that infrastructure capacity is allocated on a fair and non-discriminatory basis;

(b) ensure that the agreements referred to in paragraph (14) are non-discriminatory, transparent, and in accordance with the requirements of these Regulations; and

(c) respect the confidentiality of information supplied as part of the capacity allocation process, including the identity of other applicants during disclosure under regulation 23(5), unless the relevant applicant has agreed to disclosure of their identity.

(17) The infrastructure manager may set requirements with regard to applicants to ensure that its legitimate expectations about future revenues and utilisation of the infrastructure capacity are safeguarded.

(18) Requirements under paragraph (17)—

(a) must be appropriate, transparent and non-discriminatory;

(b) must be specified in the network statement; and

(c) may only include the provision of a financial guarantee by an applicant if the level of such guarantee does not exceed an appropriate level which is proportional to the contemplated level of activity of the applicant, and where such guarantee provides assurance of the applicant's capability to prepare compliant bids for infrastructure capacity.

(19) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(20) In reserving infrastructure capacity for the purposes of scheduled track maintenance, as requested under regulation 22(5), the infrastructure manager must take into account the effect of that reservation on applicants.

Co-operation in the allocation of infrastructure capacity crossing more than one network

20

(1) This regulation applies to the allocation of infrastructure capacity in the form of a train path crossing more than one network , including a train path which crosses between a network in the United Kingdom and a network in the European Union.

(2) Infrastructure managers must—

(a) co-operate to enable the efficient creation and allocation of infrastructure capacity to which this regulation applies, including under a framework agreement; and

(b) before consulting on the draft working timetable in relation to relevant train paths, agree with the other relevant infrastructure managers which international train paths are to be included in that draft working timetable.

(2A) Infrastructure managers required to cooperate in the allocation of infrastructure capacity crossing more than one network by paragraph (2)(a) must provide, without delay, all the information requested by the Office of Rail and Road which is necessary for the purpose of handling an appeal or an own initiative investigation on issues of access or charging relating to an international train path.

(3) The international train paths referred to in paragraph (2)(b) may only be adjusted if absolutely necessary.

(4) The infrastructure managers must establish such procedures as are appropriate, in accordance with the requirements set out in these Regulations, to enable the co-operation referred to in paragraph (2)(a) to take place, and such procedures must include coordination with representatives of the infrastructure managers whose allocation decisions have an impact on one or more other infrastructure managers.

(5) Allocation of infrastructure capacity to which this regulation applies must be without prejudice to the specific rules contained in Regulation (EU) No 913/2010 of the European Parliament and of the Council of 22 September 2010 concerning a European rail network for competitive freight.

(6) The procedures established by virtue of paragraph (4) may permit appropriate representatives of infrastructure managers outside the United Kingdom to be associated with these procedures.

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) The infrastructure managers must provide the Office of Rail and Road with sufficient information about the development of common principles and practices for the allocation of railway infrastructure and from any IT-based allocation systems, to allow it to perform its regulatory functions under paragraph 12 and Part 6.

(9) At any meeting or other activity undertaken to facilitate the allocation of infrastructure capacity across more than one network, decisions may only be taken by representatives of the relevant infrastructure managers.

(10) In acting in accordance with paragraph (2) the infrastructure managers must assess the need for and, where necessary, propose and organise international train paths in such a way as to enable ad hoc capacity for freight services to be granted in accordance with regulation 24.

(11) The prearranged train paths referred to in paragraph (2)(b) must be made available to applicants through any infrastructure manager who participates in the international coordination of train paths referred to in this regulation.

(12) The Office of Rail and Road must review decisions and practices of infrastructure managers required to co-operate over train services which cross more than one network under this regulation, that implement provisions in these Regulations or which otherwise facilitate international rail transport.

Framework agreements

21

(1) Subject to the requirements of this regulation, ..., an infrastructure manager may enter into a framework agreement with an applicant for the purpose of specifying the characteristics of the infrastructure capacity required by and offered to the applicant over a period of time exceeding one working timetable period.

(2) An applicant who is a party to a framework agreement must apply for the allocation of capacity in accordance with the terms of that agreement.

(3) Whilst seeking to meet the legitimate commercial needs of the applicant and without prejudice to paragraph (11), a framework agreement must not specify any train path in detail.

(4) The effect of a framework agreement must not be such as to preclude the use of the railway infrastructure subject to that framework agreement by other applicants or services.

(5) A framework agreement must contain terms permitting the amendment or limitation of any condition contained in that framework agreement if such amendment or limitation would enable better use to be made of the railway infrastructure.

(6) A framework agreement may contain penalties applicable on modification or termination of the agreement by any party.

(7) Other than in circumstances described in paragraphs (8), (9) and (10), a framework agreement made in accordance with paragraph (1) will in principle be for a period of five years, renewable for periods equal to its original duration, provided that the infrastructure manager may agree to a shorter or longer period in specific cases.

(8) Subject to paragraphs (9) and (10), a framework agreement for a period longer than five years must be justified by the existence of commercial contracts, specialised investments or risks.

(9) Subject to paragraph (10), a framework agreement in relation to railway infrastructure which has been designated in accordance with regulation 25(2) (“a designated infrastructure framework agreement”) may be for a period of up to fifteen years where there is a substantial and long-term investment justified by the applicant.

(10) A designated infrastructure framework agreement may be for a period in excess of fifteen years in exceptional circumstances, in particular where there is large-scale and long-term investment and particularly where such investment is covered by contractual commitments including a multi-annual amortisation plan.

(11) An application for a designated infrastructure framework agreement to which paragraph (9) or (10) applies may specify the capacity characteristics, including the frequency, volume and quality of the train paths to be provided to the applicant for the duration of the framework agreement, in sufficient detail to ensure that these are clearly established.

(12) The infrastructure manager may reduce capacity reserved under the terms of a designated infrastructure framework agreement to which paragraph (9) or (10) applies where, over a continuous period of at least one month, that capacity has been used less than the threshold quota stipulated in the network statement.

(13) Whilst respecting commercial confidentiality, the general nature of each framework agreement must be made available by the infrastructure manager to any interested party.

(14) This regulation is without prejudice to section 18 of the Act in the case of a framework agreement which is an access contract to which that section applies.

(15) Before entering into a framework agreement in relation to a rail link facility, and before amending any such agreement, the infrastructure manager and the applicant must obtain the approval of the Office of Rail and Road.

(16) Nothing in these Regulations has the effect of applying any of sections 17 to 22C of the Act to a rail link facility.

(17) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(18) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(19) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(20) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(21) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application for infrastructure capacity

22

(1) Applicants may submit a request to the infrastructure manager for an agreement granting rights to use railway infrastructure against a charge as provided for in Part 4.

(2) An applicant wishing to apply for infrastructure capacity must submit an application to the infrastructure manager in accordance with the timetable for the allocation process set out in Schedule 4.

(3) Without prejudice to Regulation (EU) No 913/2010 applicants may submit a request to a single infrastructure manager, or to a joint body established by the relevant infrastructure managers, for infrastructure capacity in the form of a train path crossing more than one network.

(4) Where an application under paragraph (3) is made to a single infrastructure manager, that infrastructure manager is permitted to act on behalf of that applicant in seeking the infrastructure capacity requested.

(5) Requests for infrastructure capacity to enable maintenance of the network to be carried out must be submitted in accordance with the timetable set out in Schedule 4.

(6) The infrastructure manager must inform interested parties as soon as possible about the unavailability of infrastructure capacity due to unscheduled maintenance work.

Scheduling and coordination

23

(1) The infrastructure manager must, so far as possible—

(a) meet all requests for infrastructure capacity, including those requests for train paths which cross more than one network; and

(b) in so doing, take account of all constraints on applicants, including the economic effect on their business.

(2) The infrastructure manager may give priority to specific services within the scheduling and coordination process, but only in accordance with the provisions in regulations 25 and 26.

(3) The infrastructure manager must consult interested parties about the draft working timetable, and must allow such interested parties a period of at least one calendar month to submit their comments.

(4) In the event of conflict between different requests for infrastructure capacity, the infrastructure manager must attempt, in consultation with the appropriate applicants, and through coordination of the requests, to ensure the best possible matching of all requirements and, in so far as it is reasonable to do so, may propose alternative infrastructure capacity from that requested in order to resolve the conflict.

(5) Consultation under paragraph (4) must be based on the disclosure by the infrastructure manager of the following information within a reasonable time, free of charge and in written or electronic form—

(a) train paths requested by all other applicants on the same routes;

(b) train paths allocated on a preliminary basis to all other applicants on the same routes;

(d) full details of the criteria being used in the capacity allocation process.

(6) Information disclosed by the infrastructure manager in accordance with paragraph (5) must not disclose the identity of other applicants, unless the applicants concerned have agreed to such disclosure.

(7) The infrastructure manager must facilitate the establishment and operation of a dispute resolution system, which must be set out in the network statement, to resolve disputes about the allocation of infrastructure capacity promptly and, where that system is applied, a decision on the matters in dispute must be reached no later than ten working days after the final submission of all relevant information in accordance with that system.

(8) The dispute resolution system provided for under paragraph (7) is without prejudice to the right of appeal to the Office of Rail and Road under regulation 32(1).

(9) The infrastructure manager must take such measures as are appropriate to deal with any concerns about the allocation process raised by interested parties.

(10) For the purposes of this regulation “interested parties” includes—

(a) all applicants for infrastructure capacity as part of the specific allocation process to which the draft working timetable relates; and

(b) other parties who have indicated to the Office of Rail and Road, in such form or manner as that Office may from time to time require, that they wish to have the opportunity to comment as to the effect that the working timetable might have on their ability to procure rail services during the working timetable period to which the draft working timetable relates.

Ad hoc requests

24

(1) In addition to making an application for capacity in accordance with the annual timetable process described in regulation 22, an applicant may submit ad hoc requests for individual train paths to the infrastructure manager.

(2) The infrastructure manager must respond to a request described in paragraph (1) as quickly as possible and, in any event, no later than five working days from receipt of the request.

(3) The infrastructure manager must make available to all potential applicants for such individual train paths information about available spare capacity on the network for which it is responsible.

(4) The infrastructure manager must, including in the case of congested infrastructure, undertake an evaluation of the need for reserve capacity to be kept available within the final working timetable to enable it to respond rapidly to foreseeable ad hoc requests for infrastructure capacity.

Declaration of specialised infrastructure

25

(1) Subject to paragraph (2), all infrastructure capacity must be available for the use of all types of rail transport service which conform to the characteristics necessary for use of that railway infrastructure, as defined in the infrastructure manager's network statement.

(2) Subject to the provisions set out in paragraph (3), and ... an infrastructure manager may designate particular railway infrastructure for use by specified types of rail service and, once the railway infrastructure is so designated, may give priority to that specified type of rail service in the allocation of infrastructure capacity.

(3) Those provisions are that—

(a) suitable alternative routes for other types of rail transport service must exist and be available;

(b) before making such a designation the infrastructure manager must consult—

(i) the Secretary of State;

(ii) where an element of the railway infrastructure which it is proposed to designate is in Scotland, Scottish Ministers;

(iii) the Office of Rail and Road; and

(iv) all other interested parties; and

(c) such designation must not prevent the use of that designated railway infrastructure by other types of rail transport service when capacity is available.

Congested infrastructure

26

(1) Where, after the coordination of requests for capacity and consultation with the applicants in accordance with regulation 23(4), it is not possible for the infrastructure manager to satisfy requests for infrastructure capacity adequately, the infrastructure manager must declare that element of the railway infrastructure on which such requests cannot be satisfied to be congested.

(2) Where, during the preparation of the working timetable for the next timetable period, the infrastructure manager considers that an element of the railway infrastructure is likely to become congested during the period to which that working timetable relates, the infrastructure manager must declare that element of the railway infrastructure to be congested.

(3) When railway infrastructure has been declared to be congested under the provisions of this regulation the infrastructure manager must inform—

(a) existing users of that railway infrastructure;

(b) new applicants for infrastructure capacity which includes that element of the railway infrastructure which has been declared to be congested;

(d) the Secretary of State; and

(e) where any element of the railway infrastructure which has been declared to be congested is in Scotland, Scottish Ministers.

(4) Where railway infrastructure has been declared to be congested in accordance with paragraph (1) or (2), the infrastructure manager must undertake a capacity analysis of the congested infrastructure, as described in regulation 27, unless a capacity enhancement plan, as described in regulation 28, is in the process of being implemented.

(5) When an element of the railway infrastructure has been declared to be congested in accordance with paragraph (1) or (2) and either—

(a) a charge as described in paragraph 1(8) of Schedule 3 has not been levied; or

(b) the charge described in sub-paragraph (a) has been levied but has not achieved a satisfactory result,

the infrastructure manager may set priority criteria for the allocation of infrastructure capacity which includes that congested element of the railway infrastructure.

(6) The priority criteria referred to in paragraph (5) must—

(a) take account of the importance of a service to society, relative to any other service which will consequently be excluded; and

(b) ensure that freight services, and in particular international freight services, are given adequate consideration in the determination of those criteria.

(7) For the purposes of paragraph (6) an international freight service is a transport service where all wagons of the train cross the border between the United Kingdom and the European Union; the train may be joined or split and the different sections of the train may have different origins and destinations.

(8) If during the course of the working timetable period to which the declaration of congested infrastructure relates, but before the completion of the capacity analysis, the congestion is resolved, the infrastructure manager may revoke the declaration made in accordance with paragraph (1).

(9) Where paragraph (8) applies, the infrastructure manager must inform the persons described in paragraph (3) that the declaration has been revoked.

Capacity analysis

27

(1) Where required in accordance with regulation 26(4), the infrastructure manager must carry out a capacity analysis of the congested infrastructure in order to identify the reasons for the congestion and the measures which might be taken in the short and medium term to ease that congestion.

(2) In conducting the capacity analysis, and in order to identify the reasons for the congestion, the infrastructure manager must consider the—

(a) characteristics of the congested infrastructure;

(b) operating procedures used on that railway infrastructure; and

(c) characteristics of the different rail services which have been allocated capacity to operate on that railway infrastructure.

(3) In seeking to determine measures to alleviate congestion the infrastructure manager must consider, in particular—

(a) re-routing of services;

(b) re-timing of services;

(d) railway infrastructure improvements.

(4) The infrastructure manager must consult the Secretary of State and, where any part of the capacity analysis relates to railway infrastructure in Scotland, the Scottish Ministers, during the preparation of the capacity analysis.

(5) The infrastructure manager must complete the capacity analysis within six months from the date on which the railway infrastructure is declared to be congested in accordance with regulation 26(1) or (2) and make the findings of the analysis available to the parties described in regulation 26(3).

Capacity enhancement plan

28

(1) The infrastructure manager must, within six months of the publication of a capacity analysis in accordance with regulation 27, produce a capacity enhancement plan.

(2) In producing the capacity enhancement plan, the infrastructure manager must—

(a) consult such interested parties as it considers necessary, including those described in regulation 26(3); and

(b) seek the prior approval of the appropriate Minister at least one month before the deadline for completion of the plan.

(3) The capacity enhancement plan must identify the—

(a) reasons for the congestion;

(b) likely future development of traffic;

(d) options for and costs of enhancing the capacity, including the potential effect on access charges.

(4) On the basis of a cost benefit analysis of the potential measures for action identified in the capacity enhancement plan, that plan must include—

(a) details of the action to be taken to enhance the capacity of the congested infrastructure; and

(b) a timetable for the completion of the detailed measures identified in accordance with sub-paragraph (a).

(5) Subject to paragraph (6), if the utilisation of capacity on that element of the railway infrastructure which is the subject of the capacity enhancement plan attracts a scarcity charge, in accordance with paragraph 1(8) of Schedule 3, the infrastructure manager must cease the levying of such charge in situations where—

(a) paragraph (1) applies but a capacity enhancement plan for that part of the railway infrastructure which is subject to the scarcity charge has not been produced, as required by this regulation; or

(b) the infrastructure manager fails to make progress with implementation of those areas of the action plan produced in accordance with paragraph (4).

(6) Paragraph (5) does not apply where—

(a) the action plan produced in accordance with paragraph (4) cannot be implemented for reasons beyond the immediate control of the infrastructure manager; or

(b) the options identified in that action plan are not economical or financially viable,

provided that prior approval to continue to levy the scarcity charge is obtained from the Office of Rail and Road or, in the case of a rail link facility, the Secretary of State.

(7) At the end of the six month period starting with the publication of the capacity analysis in accordance with regulation 27, whether or not the approval sought under paragraph (2)(b) has been received, the infrastructure manager must provide the parties consulted under paragraph (2)(a) with a copy of the plan and the timetable for completion of the measures identified to resolve the congestion.

(8) For the purposes of this regulation the “appropriate Minister” means—

(a) where the capacity enhancement plan relates wholly to railway infrastructure in Scotland, the Scottish Ministers;

(b) where the capacity enhancement plan relates in part to railway infrastructure in Scotland, the Secretary of State and the Scottish Ministers acting jointly; and

Use of train paths

29

(1) Subject to paragraph (2), the infrastructure manager must, in particular where railway infrastructure has been declared to be congested in accordance with regulation 26, require an applicant who has, over a period of at least one month, used a train path less often than the threshold quota stipulated in the network statement, to surrender that train path.

(2) Paragraph (1) does not apply if, in the view of the infrastructure manager, the failure to use the train path in accordance with the threshold quota stipulated in the network statement arose as a result of non-economic reasons outside the control of the applicant.

(3) The infrastructure manager must in the network statement specify conditions under which previous levels of capacity utilisation will be taken into account in determining the priorities to be used in making decisions on the allocation of capacity.

Special measures to be taken in the event of disruption

30

(1) In the event of disruption to train movements caused by technical failure or accident, the infrastructure manager must take all such steps as are necessary to restore the normal operation of the network.

(2) The infrastructure manager must have in place a contingency plan listing the various bodies who are required to be informed in the event of a serious incident or serious disruption to train movements.

(3) The infrastructure manager may, in the event of an emergency and where absolutely necessary on account of a breakdown which renders a part of the railway infrastructure temporarily unusable, withdraw allocated train paths without warning and with immediate effect for such period as is necessary to repair the affected infrastructure.

(4) Subject to paragraph (5), the infrastructure manager may, if it deems it to be necessary, require railway undertakings to make available to it such resources as the infrastructure manager considers appropriate to restore the normal operation of the network as quickly as possible.

(5) Where a contract or framework agreement between a railway undertaking and the infrastructure manager incorporates conditions as to the special measures to be taken in the event of disruption, the resources required by the infrastructure manager under paragraph (4) must be in accordance with those conditions.

PART 6 — Regulation and Appeals

Regulatory body

31

(1) Section 4 of the Act has effect, to the extent relevant and so far as is consistent with these Regulations, as if the reference to the functions assigned or transferred to the Office of Rail and Road under or by virtue of Part 1 of the Act included the functions assigned to it under or by virtue of these Regulations.

(2) The Office of Rail and Road must ensure that charges for the use of railway infrastructure imposed by the infrastructure manager comply with the requirements of Part 4 and Schedule 3.

(3) Negotiations between an applicant and the infrastructure manager about the level of railway infrastructure charges are only permitted if carried out under the supervision of the Office of Rail and Road and, if such negotiations are likely to contravene the requirements of these Regulations, it is the duty of the Office of Rail and Road to intervene.

(4) The Office of Rail and Road may in particular, as part of the intervention mentioned in paragraph (3), issue such directions to the applicant or the infrastructure manager as it considers appropriate for the purpose of ensuring that no contravention arises or, to the extent that a contravention has arisen, that it ceases.

(5) Where the Office of Rail and Road, by virtue of regulation 32(4), specifies the manner and form in which any notification or appeal must be lodged in accordance with these Regulations, it must publicise this information in such manner as it considers appropriate.

(6) Without prejudice to the requirements of paragraph 18 of Schedule 1 to the Railways and Transport Safety Act 2003 , procedural arrangements made by the Office of Rail and Road under paragraph 8 of that Schedule must ensure that a person with ultimate responsibility for taking a decision under regulations 32, 33, 34 and 35 complies with the criteria listed in paragraph (7).

(7) The criteria are that such persons—

(a) must make an annual declaration of—

(i) their commitment to the impartial fulfilment of their duties under these Regulations; and

(ii) any direct or indirect interests which may be considered prejudicial to their independence and which might influence their performance of any function;

(b) must withdraw from decision making in cases which concern an undertaking with which they have had a direct or indirect connection in the period of 12 months prior to the date on which any procedure relating to a decision described in paragraph (6) commences;

(d) must have no professional position or responsibility with any regulated undertaking or entity for a period of not less than 12 months commencing at the end of their term of employment to take decisions under paragraph (6).

(8) Without prejudice to the right of any person to make an application to the court under Part 54 of the Civil Procedure Rules 1998 , it is the duty of any person to whom a direction is given under paragraph (4) to comply with and give effect to that direction.

Appeals to the regulatory body

32

(1) Subject to paragraph (3), an applicant has a right to appeal to the Office of Rail and Road if it believes that it has been unfairly treated, discriminated against or is in any other way aggrieved, and in particular against decisions adopted by the infrastructure manager, an allocation body, a charging body, a service provider or, as the case may be, a railway undertaking, concerning any of the matters described in paragraph (2).

(2) Those matters are—

(a) the network statement produced in accordance with regulation 13, in its provisional and final versions;

(b) the information which, by virtue of regulation 13(4), must be included in that network statement;

(d) the charging scheme, the charging system and the Channel Tunnel charging framework;

(e) the level or structure of railway infrastructure charges, the principles of which are prescribed in Part 4 and Schedule 3, which it is, or may be, required to pay;

(f) the arrangements for access provided under Part 2 and Schedule 2; and

(g) access to and charging for services provided under Part 2 and Schedule 2.

(3) Where the matter of an appeal under paragraph (1) is one in relation to which directions may be sought from the Office of Rail and Road under section 17 or 22A of the Act , the applicant must lodge the appeal by way of an application under the relevant section.

(4) Where the matter of an appeal under paragraph (1) is one to which paragraph (3) does not apply because—

(a) the railway facility to which the appeal relates is, by virtue of section 20 of the Act , an exempt facility;

(b) the appeal relates to a rail link facility; or

(c) the subject matter of the appeal is not capable of being addressed by directions which may be sought under section 17 or 22A of the Act,

the applicant must lodge the appeal by way of an application under this regulation, in such form and manner as the Office of Rail and Road may from time to time specify.

(5) Where the matter of an appeal under paragraph (1) is one to which paragraph (3) does not apply, the Office of Rail and Road must—

(a) 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; and

(b) within a predetermined and reasonable time, and, in any case, within six weeks of the date of receipt of all relevant information (including information provided pursuant to section 80 of the Act , as modified by regulation 36)—

(i) make a decision;

(ii) inform the relevant parties of its decision and the reasons for that decision;

(iii) 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

(iv) publish the decision.

(6) Where a decision or direction under paragraph (5) would affect a rail link facility or, as the case may be, the operation of the development agreement, the Office of Rail and Road must consult and, subject to paragraph (7), take into account any representations made by the Secretary of State before making or issuing such a decision or direction.

(7) Where paragraph (6) applies and, following consultation, the Secretary of State submits representations, the Office of Rail and Road must, before making or issuing a decision or direction, consult such interested parties as it considers appropriate on the representations submitted by the Secretary of State.

(8) When an appeal under paragraph (1) contests a decision under regulation 6(4) to refuse a request for access to, and the supply of, services described in paragraph 2 of Schedule 2, a decision under paragraph (5) 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.

(9) When an appeal under paragraph (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), a determination under paragraph (5) must include a determination, as appropriate and in respect of the circumstances to which the appeal relates, of—

(a) whether a viable alternative as described in regulation 6(4) exists;

(b) whether it is possible to accommodate the conflicting requests on the basis of demonstrated need; and

(10) Where a decision under paragraph (5) 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, the Office of Rail and Road must, in such a decision, either—

(a) confirm that no modification of the infrastructure manager or allocation body's decision is required; or

(b) require modification of that decision and issue directions to that effect.

(11) Without prejudice to the right of any person to make an application to the court under Part 54 of the Civil Procedure Rules 1998—

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