|
| |
|
(3) | As soon as the proposed contract has been submitted to the Office of Rail |
| |
Regulation under section 18(5) of that Act, the Office shall notify the Secretary |
| |
of State of the terms of the proposed contract. |
| |
(4) | Subsections (5) and (6) apply where the Secretary of State has been notified |
| |
under subsection (3) in respect of a contract. |
| 5 |
(5) | The Secretary of State may give directions to the Office of Rail Regulation |
| |
requiring the Office, in acting under section 18 of the Railways Act 1993 (c. 43), |
| |
to give its approval to terms of the proposed contract— |
| |
(a) | that relate to the duration of the permission concerned, |
| |
(b) | that are terms, other than terms relating to charges or other financial |
| 10 |
matters, that in the directions are identified as terms that must be |
| |
included in the contract on the ground that the Secretary of State |
| |
considers them to be needed to facilitate the provision of Crossrail |
| |
| |
(c) | so far as those terms relate to the railway mentioned in section 1(1)(a). |
| 15 |
(6) | A direction under subsection (5) that is given in respect of a term may (but need |
| |
not) be given in respect of the term only so far as it is to have effect for |
| |
| |
(7) | Until the Secretary of State has either given directions under subsection (5) or |
| |
notified the Office of Rail Regulation that he will not be giving directions under |
| 20 |
that subsection in respect of the contract, the Office of Rail Regulation, in acting |
| |
under section 18 of the Railways Act 1993, may neither reject the contract nor |
| |
approve it subject to modifications (but may approve it without modification). |
| |
| |
“access contract” and “facility owner” have the meanings given by section |
| 25 |
17(6) of the Railways Act 1993; |
| |
“Crossrail passenger service” has the meaning given by section 22(9); |
| |
“railway facility” has the meaning given by section 83(1) of the Railways |
| |
| |
31 | Power of Secretary of State to require entry into access contract |
| 30 |
(1) | The Secretary of State may give directions to a facility owner requiring him to |
| |
enter into an access contract with the Secretary of State, or with any other |
| |
person, for the purpose of enabling permission to be obtained from the facility |
| |
owner for the use of the facility owner’s railway facility for or in connection |
| |
with the operation of Crossrail passenger services. |
| 35 |
(2) | Subsections (6) to (9) of section 17 of the Railways Act 1993 apply for the |
| |
interpretation of subsection (1) above as they apply for the interpretation of |
| |
that section, save that any reference in those subsections to the applicant shall |
| |
be taken to be a reference to the person with whom the facility owner is |
| |
required by directions under subsection (1) above to enter into a contract. |
| 40 |
(3) | Subsection (4) applies if entry into a contract is required by directions under |
| |
subsection (1) above and (after taking account of any order under section 29(1)) |
| |
the contract proposed to be entered into in pursuance of the directions is |
| |
required by section 18(5) of the Railways Act 1993 to be submitted to the Office |
| |
| 45 |
|
| |
|
| |
|
(4) | In acting under section 18 of that Act, the Office of Rail Regulation must give |
| |
its approval to the terms of the proposed contract so far as they give effect to |
| |
provisions in the directions under subsection (1) above that are— |
| |
(a) | provisions relating to the duration of the permission concerned, |
| |
(b) | provisions as to terms, other than terms relating to charges or other |
| 5 |
financial matters, that in those directions are identified as terms that |
| |
must, or must so far as they are to have effect for particular purposes, |
| |
be included in the contract on the ground that the Secretary of State |
| |
considers that such inclusion is needed to facilitate the provision of |
| |
Crossrail passenger services, or |
| 10 |
(c) | provisions requiring terms identified in those directions to be included |
| |
in the contract so far as those terms relate to the railway mentioned in |
| |
| |
(5) | For the purposes of determining whether and how section 18 of that Act |
| |
applies in relation to a contract which a facility owner is required to enter into |
| 15 |
by directions under subsection (1) above, that section shall have effect— |
| |
(a) | as though any reference in section 17 of that Act to the applicant were |
| |
a reference to the person with whom the facility owner is required to |
| |
enter into the contract, and |
| |
(b) | as though article 3 (exemption from sections 17 and 18 of that Act) were |
| 20 |
omitted from the Railways (Heathrow Express) (Exemptions) Order |
| |
| |
(6) | In this section “Crossrail passenger service” has the meaning given by section |
| |
| |
32 | Amending existing access contracts: effects of contracts under section 31 |
| 25 |
(1) | Subsection (2) applies if entry into a contract is required by directions under |
| |
section 31(1) and (after taking account of any order under section 29(1)) the |
| |
contract proposed to be entered into in pursuance of the directions is required |
| |
by section 18(5) of the Railways Act 1993 (c. 43) to be submitted to the Office of |
| |
| 30 |
(2) | The Office of Rail Regulation may give directions requiring the parties to an |
| |
access contract to which this subsection applies to make such amendments to |
| |
the contract as are, in its opinion, necessary to facilitate the operation, on and |
| |
after the date specified under section 23(3), of the Crossrail passenger services |
| |
concerned so far as they are principal Crossrail passenger services. |
| 35 |
(3) | Subsection (2) applies to an access contract where the permission concerned is |
| |
permission to use a railway facility that— |
| |
(a) | is, or is part of, a railway but is not, and is not part of, the railway |
| |
mentioned in section 1(1)(a), or |
| |
(b) | is associated with a railway but not by reason only of its being |
| 40 |
associated with the railway mentioned in section 1(1)(a). |
| |
(4) | The Office of Rail Regulation may not under subsection (2) give directions |
| |
requiring the parties to an access contract to make amendments relating— |
| |
(a) | to amounts payable under the contract by one of them to the other, or |
| |
(b) | to the times at which, and manner in which, any such amounts are |
| 45 |
| |
|
| |
|
| |
|
(5) | Where the Office of Rail Regulation gives directions under subsection (2) |
| |
requiring amendments to be made to an access contract, it shall consider |
| |
whether to carry out an access charges review in relation to that contract. |
| |
(6) | The Secretary of State may by regulations make provision in relation to the |
| |
carrying out by the Office of Rail Regulation of its functions under subsection |
| 5 |
| |
(7) | The provision that may be made by regulations under subsection (6) includes |
| |
(in particular) provision corresponding to any provision of paragraphs 3 to 6 |
| |
of Schedule 4 to the Railways Act 1993 (c. 43). |
| |
(8) | The power to make regulations under subsection (6) shall be exercisable by |
| 10 |
statutory instrument which shall be subject to annulment in pursuance of a |
| |
resolution of either House of Parliament. |
| |
| |
“access charges review” has the meaning given by paragraph 1A(2) of |
| |
Schedule 4A to the Railways Act 1993; |
| 15 |
“access contract” has the meaning given by section 17(6) of that Act; |
| |
“Crossrail passenger service” and “principal Crossrail passenger service” |
| |
have the meanings given by section 22(9); |
| |
“railway facility” has the meaning given by section 83(1) of the Railways |
| |
| 20 |
33 | Effect on franchise agreements of directions under section 27 or 32 |
| |
(1) | This section applies where— |
| |
(a) | directions are given under section 27(2) or 32(2), and |
| |
(b) | the amendments made in consequence of those directions affect the |
| |
carrying out of a franchise agreement that is not one to which the |
| 25 |
Scottish Ministers are a party. |
| |
(2) | The parties to the franchise agreement shall use all reasonable endeavours to |
| |
agree how to vary the agreement in consequence of those directions. |
| |
(3) | In default of the parties to the franchise agreement agreeing how to vary the |
| |
agreement in consequence of those directions, the Secretary of State may |
| 30 |
| |
(4) | Subsection (5) applies where— |
| |
(a) | the parties to the franchise agreement have agreed how to vary it in |
| |
consequence of those directions, or |
| |
(b) | the Secretary of State has terminated the franchise agreement under |
| 35 |
| |
(5) | The Office of Rail Regulation may give directions requiring the person who |
| |
applied for the directions mentioned in subsection (1)(a) to pay compensation |
| |
| |
(6) | The Office of Rail Regulation shall determine the amount of compensation |
| 40 |
payable under subsection (5). |
| |
(7) | Any compensation payable under subsection (5) shall be recoverable as a debt |
| |
| |
|
| |
|
| |
|
(8) | In this section “franchise agreement” and “franchisee” have the meanings |
| |
given by section 23(3) of the Railways Act 1993 (c. 43). |
| |
34 | Award of Crossrail franchises to public-sector operators |
| |
(1) | Section 25 of the Railways Act 1993 (public-sector operators not to be |
| |
franchisees) does not apply in relation to the franchisee in respect of a franchise |
| 5 |
agreement for one or more Crossrail passenger services. |
| |
| |
“Crossrail passenger service” has the meaning given by section 22(9); |
| |
“franchisee” and “franchise agreement” have the meanings given by |
| |
section 23 of the Railways Act 1993 (designated passenger services to be |
| 10 |
provided under franchise agreements). |
| |
35 | Disapplication of franchising and access exemptions |
| |
(1) | The Secretary of State may by order amend, or revoke provisions of, the LRT |
| |
Order or the Heathrow Express Order— |
| |
(a) | for the purpose of restricting or ending an exemption granted by a |
| 15 |
| |
(b) | for the purpose of adding to the conditions subject to which such an |
| |
| |
(c) | for the purpose of making such a condition more onerous. |
| |
(2) | For the purposes of subsection (1), each of the following is a “relevant |
| 20 |
| |
article 4(b) of the LRT Order, |
| |
article 4(d) of the LRT Order, |
| |
article 3(1) of the Heathrow Express Order, and |
| |
article 4(1) of the Heathrow Express Order. |
| 25 |
(3) | Where exercise of the power under subsection (1) has effect to end an |
| |
exemption granted by article 3(1) of the Heathrow Express Order in relation to |
| |
any track, station or depot, the Secretary of State may by order— |
| |
(a) | make provision for, or in connection with, treating as void— |
| |
(i) | every access contract, including one entered into before the |
| 30 |
making of the order, where the permission concerned is |
| |
permission to use that facility, or |
| |
(ii) | a contract such as is mentioned in sub-paragraph (i) if it is |
| |
specified in the order or is of a description so specified; |
| |
(b) | provide for exceptions to any provision made under paragraph (a). |
| 35 |
(4) | The power under subsection (1), so far as relating to an exemption granted by |
| |
the LRT Order, is exercisable only for the purpose of, or for purposes that |
| |
include, facilitating services for the carriage of passengers by railway so far as |
| |
they are services on the railway mentioned in section 1(1)(a). |
| |
| 40 |
(a) | under subsection (1), so far as relating to an exemption granted by |
| |
article 3(1) of the Heathrow Express Order, and |
| |
(b) | under subsection (3)(a), |
| |
| are exercisable only for the purpose of, or for purposes that include, facilitating |
| |
Crossrail passenger services. |
| 45 |
|
| |
|
| |
|
(6) | The powers under subsection (1), so far as relating to an exemption granted by |
| |
article 4(1) of the Heathrow Express Order, are exercisable only for, or for |
| |
purposes that include, either or both of the following— |
| |
(a) | facilitating Crossrail passenger services, and |
| |
(b) | enabling Crossrail passenger services to be designated under section |
| 5 |
23(1) of the Railways Act 1993 (c. 43) (services which ought to be |
| |
provided under franchise agreements). |
| |
(7) | The power to make an order under this section shall be exercisable by statutory |
| |
instrument which shall be subject to annulment in pursuance of a resolution of |
| |
either House of Parliament. |
| 10 |
| |
“the LRT Order” means the Railways (London Regional Transport) |
| |
(Exemptions) Order 1994 (S.I. 1994/573), as from time to time |
| |
| |
“the Heathrow Express Order” means the Railways (Heathrow Express) |
| 15 |
(Exemptions) Order 1994 (S.I. 1994/574), as from time to time |
| |
| |
“access contract” has the meaning given by section 17(6) of the Railways |
| |
| |
“Crossrail passenger service” has the meaning given by section 22(9). |
| 20 |
| |
(1) | If the Secretary of State considers that discontinuance falling within any of the |
| |
closure provisions of the Railways Act 2005 is necessary or expedient because |
| |
of the operation of Crossrail or the carrying out of any of the works authorised |
| |
by this Act, he may direct that those provisions shall be treated as not applying |
| 25 |
| |
(2) | The reference in subsection (1) to the closure provisions of the Railways Act |
| |
| |
sections 22 to 25 (discontinuance of railway passenger services), |
| |
sections 26 to 28 (discontinuance of operation of passenger networks), |
| 30 |
sections 29 to 31 (discontinuance of use or operation of stations), and |
| |
section 37 (discontinuance of experimental passenger services). |
| |
| |
(1) | Section 216(1)(b) of the Greater London Authority Act 1999 (c. 29) (consent of |
| |
Transport for London required for creation etc. of interests in, or rights over, |
| 35 |
assets designated as key system assets in connection with certain railway- |
| |
related public-private partnership agreements) shall not apply in relation to— |
| |
(a) | the creation of an interest in, or right over, a key system asset, or |
| |
(b) | an agreement to create an interest in, or right over, a key system asset, |
| |
| if the interest or right is, or is to be, created in order to facilitate any of the |
| 40 |
matters mentioned in subsection (2). |
| |
| |
(a) | the construction of the railway mentioned in section 1(1)(a); |
| |
(b) | the maintenance of that railway; |
| |
|
| |
|
| |
|
(c) | the operation of services for the carriage of passengers or goods by |
| |
railway on a line the whole of which, or part of which, forms part of that |
| |
| |
(3) | In this section “key system asset” has the meaning given by section 213(1) of the |
| |
Greater London Authority Act 1999 (c. 29). |
| 5 |
38 | Power to designate persons as “protected railway companies” |
| |
(1) | The Secretary of State may, with the consent of a company to which this |
| |
subsection applies, by order make provision for the company to be treated as a |
| |
protected railway company for the purposes of Part 1 of the Railways Act 1993 |
| |
| 10 |
(2) | Subsection (1) applies to a company if— |
| |
(a) | it is a private sector operator and it has, for the time being, the |
| |
management of a railway facility that is or is part of, or is associated |
| |
with, the railway mentioned in section 1(1)(a), or |
| |
(b) | it is a private sector operator and it owns, or has rights in relation to, |
| 15 |
| |
(3) | The power to make an order under subsection (1) shall be exercisable by |
| |
statutory instrument which shall be subject to annulment in pursuance of a |
| |
resolution of either House of Parliament. |
| |
(4) | In this section “private sector operator” and “railway facility” have the same |
| 20 |
meanings as in Part 1 of the Railways Act 1993. |
| |
| |
(1) | Where the nominated undertaker considers that a matter affects— |
| |
(a) | the construction, maintenance or operation of Crossrail, and |
| |
(b) | the construction, maintenance or operation of a railway asset which is |
| 25 |
| |
| it may by notice in writing require a controller of the asset to enter into an |
| |
agreement with it about how the matter is to be dealt with. |
| |
(2) | Where a controller of a railway asset which is not a Crossrail asset considers |
| |
| 30 |
(a) | the construction, maintenance or operation of the asset, and |
| |
(b) | the construction, maintenance or operation of Crossrail, |
| |
| it may by notice in writing require the nominated undertaker to enter into an |
| |
agreement with it about how the matter is to be dealt with. |
| |
(3) | The terms of an agreement under subsection (1) or (2) shall be such as the |
| 35 |
nominated undertaker and the controller of the asset may agree or, in default |
| |
of agreement, as may be determined by arbitration. |
| |
(4) | For the purposes of subsections (1) and (2), a railway asset is a Crossrail asset |
| |
| |
(a) | in the case of a railway asset consisting of any network, station or light |
| 40 |
maintenance depot, it is comprised in Crossrail, and |
| |
(b) | in the case of a railway asset consisting of any train being used on a |
| |
network, the network is comprised in Crossrail. |
| |
| |
|
| |
|
| |
|
“controller”, in relation to a railway asset, means— |
| |
(a) | the person having the management of the asset for the time |
| |
| |
(b) | a person who owns, or has rights in relation to, the asset; |
| |
“light maintenance depot”, “network”, “railway asset” and “station” have |
| 5 |
the same meanings as in Part 1 of the Railways Act 1993 (c. 43). |
| |
40 | Arbitration after referral under section 39(3) |
| |
(1) | This section applies where a difference is referred under section 39(3) to |
| |
| |
(2) | The parties must notify the Secretary of State of the referral without delay after |
| 10 |
the commencement of the arbitral proceedings. |
| |
(3) | The Secretary of State may, on request or otherwise, direct the arbitrator as to |
| |
results that are to be achieved by the agreement for which terms are to be |
| |
determined by the arbitration. |
| |
(4) | A direction under subsection (3) may be made even though the making of the |
| 15 |
direction affects the outcome of proceedings to which the Secretary of State |
| |
himself, or a body in which he has an interest, is a party. |
| |
(5) | A request for a direction under subsection (3) may be made by the arbitrator |
| |
| |
(6) | For the purpose of determining whether or not the arbitrator has to comply |
| 20 |
with a direction under subsection (3), the rule is that he must comply with the |
| |
direction in determining terms of the agreement if the direction— |
| |
(a) | is relevant to the determination of those terms, and |
| |
(b) | is given to him before he has made his award determining those terms. |
| |
(7) | For the purpose of determining what the arbitrator has to do to comply with a |
| 25 |
direction under subsection (3) with which he has to comply, the rule is that he |
| |
must carry out his function of determining terms of the agreement so as to |
| |
secure, so far as is reasonably practicable, that the results concerned are |
| |
achieved by the agreement. |
| |
41 | Arbitration under section 39(3): multiple proceedings |
| 30 |
(1) | The Secretary of State may, on request or otherwise, direct— |
| |
(a) | that a group of proceedings is to be consolidated, or |
| |
(b) | that concurrent hearings are to be held in a group of proceedings. |
| |
(2) | In subsection (1) “group of proceedings” means a group consisting of— |
| |
(a) | section 39(3) proceedings, and |
| 35 |
(b) | any one or more of the following— |
| |
(i) | other section 39(3) proceedings, |
| |
(ii) | arbitral proceedings related to the proceedings mentioned in |
| |
| |
(iii) | arbitral proceedings related to section 39(3) proceedings that |
| 40 |
are to be consolidated with the proceedings mentioned in |
| |
| |
|
| |
|