APPENDIX 6: NOTE FROM THE PROMOTER
TO THE COMMITTEE ON RAILWAY COMPENSATION
The Committee asked two questions:
1. Whether other comparable large-scale rail schemes
have provided 100% compensation (i.e. not just compensation for
disruption resulting from network changes or disruption lasting
beyond a six month period 6) for other users of the railway affected
by construction works. The petitioners referred to provisions
in the TWA Order for the East London line. Are such provisions
now commonplace in comparable legislation?
1.1 Schedule 11 of the East London Line Extension
(No. 2) Order 2001 (EWS exhibit 33) is a reasonably standard protective
provision for the benefit of Network Rail (Railtrack before it)
where it does not itself undertake works affecting its railway.
ELL and the Docklands Light Railway are examples and similar provisions
are included in orders authorising tram schemes affecting the
rail network. The protective provision's purpose is to ensure
that Network Rail can recoup the cost of compensation to affected
operators from the body undertaking the works in a case where
Competent Authority Change (G9 of the Network Code) might be invoked,
or it might be argued that possessions required for the works
were competent authority possessions for the purpose of Schedule
4 to the track access agreements. A protective provision such
as contained in the ELL No 2 Order also has the result described
by EWS: compensation is payable for non-Network Change disruption
of less than 6 months duration.
1.2 Since this is a protective provision for Network
Rail, it follows that this does not apply to any of its own works,
large or small, and whether for maintenance, renewal or upgrading.
For example the provision does not apply to the West Coast Main
Line upgrading works which are greater in scale than the on-network
works contained in the Crossrail Bill.
1.3 The intention is that Network Rail will undertake
the on-network works contained in the Crossrail Bill. Many of
these works have a general benefit such as electrification and
the six works on which EWS has sought undertakings. These works
will be designed in detail by Network Rail and the possessions
and non-Network Change disruption planning will also be Network
Rail's responsibility. Network Rail will also be paying for these
works and recouping the cost through access charges.
1.4 No protective provisions for Network Rail have
been included in the Crossrail Bill. However there is a Protective
Provisions Agreement between Network Rail and the Secretary of
State. Under this Network Rail's interests are secured primarily
by having the right to undertake on network works, rather than
adopting the approach used projects such as the DLR and ELL for
which it is not undertaking works.
2. If the Committee decided that rail users should
be afforded 100% compensation in relation to Crossrail construction
works, as requested by the Petitioners, what costs would this
add to the project? It is understood that it will be very difficult
to give figures for this but the Committee would appreciate an
2.1 It is impossible to say what might be the additional
cost of providing 100% compensation. This is because the detailed
design of the works has yet to be undertaken by Network Rail and
until this has been done there is no basis for an assessment of
different types of disruption in relation to compensation.
2.2 The expectation is that for any major project
such as Crossrail, most disruption would attract compensation
because most of the works would constitute Network Change, either
because of the nature of the changes to the network, or because
of the aggregation of minor changes so as to exceed the 6 month
minimum qualifying period for compensation.
2.3 Network Rail will treat the Crossrail works as
it would any of the other works it has to undertake in determining
what compensation is applicable under normal industry practice.