Examination of Witnesses (Questions 14920
- 14939)
14920. If we go to pages on to clause 19, it
needs to be read with clause 17 above and that is the provision
which enables Railtrack and the relevant train operators to obtain
payment of their relevant costs which we have seen previously
defined. Is that correct?[65]
(Mr Oatway) That is correct.
14921. It is simply a provision either as in
CTRL or as in the East London line to protect you in the circumstances
you have identified?
(Mr Oatway) That is right.
14922. Turning to EWS 40, explain to the Committee
the three undertakings which you are seeking on page five.[66]
21 is an undertaking by the Promoter to the Committee or to EWS
that network code condition G5 will not be invoked in consequence
of the Crossrail Act. That is the legislative change point, is
it not, which you have already explained?
(Mr Oatway) That is correct.
14923. It seems that is what the department
intends so you are merely asking them to commit themselves to
it?
(Mr Oatway) That is right.
14924. Could you explain 22? The first thing
is that there are some words that need to be added. After "is
entitled" in the penultimate line, we need to add the words
"or the method by which it is calculated."
(Mr Oatway) That is correct.
14925. Could you explain that undertaking to
the Committee?
(Mr Oatway) This goes back
to what I touched on earlier. Currently, when network changes
are drawn up and formally proposed in detail, there are many different
ways of implementing something. We want an undertakingwe
are looking for the Committee's help herein trying to ensure
that Crossrail will not be able to override or remove the ability
for EWS as a train operator to be able to object to the detail
of the scheme rather than the principle; or to object if there
was any dispute over the amount of compensation which is another
right we have at the moment; or the method by which that compensation
is calculated. We currently enjoy that right and we would like
an undertaking from the Promoter that they would not seek to overturn
that right, as we believe they have implied so far.
14926. So far as independent adjudication, would
that also be part of the matter?
(Mr Oatway) Absolutely,
yes. As Graham Smith mentioned earlier, it is crucial to confidence
within the industry that any disputes can be resolved by an independent
arbitrator rather than somebody who has an interest in one party
or the other.
14927. That is the position under the ordinary
code and you are simply asking that it be maintained for Crossrail?
(Mr Oatway) That is correct.
14928. Undertaking 23 goes to the CTRL and the
East London line point, an undertaking by the Promoter to the
Committee or to EWS that the Promoter will develop and operate
a bespoke compensation regime covering all other losses freight
train operators may suffer in line with the precedent given in
EWS 28ie, those losses not covered by network change or
the other existing mechanismssuch that the freight train
operators receive compensation for all other costs, direct costs
and expenses including loss of revenue reasonably incurred by
them as a consequence of any restriction of the use of Network
Rail railway network as a result of construction of the Crossrail
works.
(Mr Oatway) That is right. We believe that
undertaking is essential to enable EWS to be compensated on a
no net cost/no net gain basis as was intended by Crossrail's H2
paper.[67]
14929. You are not seeking any sort of double
compensation, are you?
(Mr Oatway) No, absolutely
not. I can categorically say that we are just looking for compensation
on a no net cost/no net gain basisie, we are looking to
be held harmless for the effects of Crossrail on our services.
14930. Undertaking 21 was about G5. What is
the possibility that Network Rail might invoke condition G5?
(Mr Oatway) This is the
other concern we have because obviously when network changes are
proposed they are normally proposed by Network Rail in most cases.
If the department gives us an undertaking or the Promoter give
us an undertaking that they will not implement G5, we would hope
that Network Rail would give the same undertaking because without
that we would still not have the same confidence that it will
not be invoked when the time comes.
14931. What is G5 aimed at? When it refers to
legislative change, is that a change like a health and safety
change under the Act or something like that?
(Mr Oatway) That is correct,
if there is a proposal, for example, which affects the whole industry
network so it includes changes to trains and track and operators.
Network Rail are instructed by the Health and Safety Executivenow
the ORR as they have taken on that roleto implement safety
procedures. We would expect that each operator or Network Rail
would cover the costs of that in their own respect.
Cross-examined by Ms Lieven
14932. So far as your first point is concerned
that the compensation provisions for enhancements do not include
temporary changes for less than six months, as I understand it,
what you are seeking compensation for is over and above that which
you would get under normal industry processes.
(Mr Oatway) Yes. We want
compensation on a no net cost/no net gain basis.
14933. It is compensation that you would not
get if works were carried out by Network Rail under normal powers.
(Mr Oatway) If they came
under the definition of an operational change of less than six
months, that is correct.
14934. For instance, works on the West Coast
Main Line which your own witness, Mr Smith, was keen to say were
as extensive and more expensive than Crossrail. If that project
was done again by Network Rail your clients would not get any
compensation for network changes that interrupted services for
less than six months.
(Mr Oatway) If it was done
by Network Rail, but one important point is that under the normal
industry processes any disruption that gets proposed through the
industry procedures we have a right to object to and have it independently
arbitrated; whereas in this particular case of Crossrail under
the Bill powers it looks like those rights and concerns will be
overridden.
14935. So far as the second point is concerned,
invoking G5, can I say to the Committee it is not the Promoter's
intention to invoke G5. I hope that gives some comfort on that
point because there seemed to be some confusion.
(Mr Oatway) If that is as
good as an undertaking
14936. Ms Lieven: It is a statement to
the Committee which the Secretary of State can be held to so I
suspect it is as good as an undertaking.
14937. Mr Liddell-Grainger: I think the
point is taken on board.
14938. Ms Lieven: So far as the third
point is concerned, do you have a copy of our information paper
on railway compensation, H2?[68]
(Mr Oatway) I believe I have.
14939. In the appendix at page five we deal
with standard industry compensation arrangements. I assume you
have read this?
(Mr Oatway) Absolutely.
65 Committee Ref: A168, Schedule 11, Protection for
Railtrack, The London Underground (East London Line Extension)
(No. 2) Order 2001 (S.I., 2001, No. 3682), www.opsi.gov.uk (SCN-20060711-07) Back
66
Committee Ref: A168, Requests for Decision, Compensation for
temporary disruption (LINEWD-19605-100). Back
67
Crossrail Information Paper H2-Railway Compensation, billdocuments.crossrail.co.uk Back
68
Crossrail Information Paper H2-Railway Compensation, billdocuments.crossrail.co.uk Back
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