APPENDIX 7: NOTE FROM THE PROMOTER
TO THE COMMITTEE ON THE RAIL INFRASTRUCTURE MANAGER
The Select Committee sought an explanation of how
an infrastructure manager is appointed. This requires first of
all setting out the legal requirements, which are complex because
the requirements of the Railways Act 1993 are overlain by two
sets of regulations (transposing EU Directives) that, although
related, have certain differences between them. We then explain
how the infrastructure manager is identified in practice in the
light of those requirements.
Legal Framework
Under the Railways and Other Guided Transport Systems
(Safety) Regulations 2006 ("the ROGS"), an "infrastructure
manager" means the person who—
"(a) in relation to infrastructure other than
a station, is responsible for developing and maintaining that
infrastructure or, in relation to a station, the person who is
responsible for managing and operating that station, except that
it shall not include any person solely on the basis that he carries
out the construction of that infrastructure or station or its
maintenance, repair or alteration; and
(b) manages and uses that infrastructure or station,
or permits it to be used, for the operation of a vehicle."
It follows that the infrastructure manager of, for
example, the tracks in the central tunnel section for the purposes
of the ROGS is the person responsible for developing and maintaining
that track and managing and permitting its use by trains. Moreover,
although the infrastructure manager is not formally appointed
through a regulatory or statutory process, he requires a safety
authorisation from the ORR. To obtain such authorisation, the
infrastructure manager must demonstrate to the ORR that a satisfactory
safety management system, as further defined in the ROGS (see
regulation 5), is in place.
Further, the infrastructure manager under the ROGS
does not necessarily own the rail asset. This is the case in respect
of the Channel Tunnel Rail Link ("CTRL"), where the
Secretary of State owns it and London and Continental Railways
has a concession, but Network Rail is the infrastructure manager
under the ROGS because it has (1) sufficient management responsibility
for it by contract and (2) sufficient competence, as demonstrated
by its safety authorisation.
This example shows that responsibility for safety
can be separated from economic control. It is a question of fact
whether a contract between, say, an owner of infrastructure and
another party confers sufficient controls and rights such that
the other party can properly take responsibility for safety matters.
Under the Railways Infrastructure (Access and Management)
Regulations 2005 ("the 2005 Regulations") an "infrastructure
manager" is to be interpreted as:
"any body or undertaking that is responsible
in particular for—
(a) the establishment and maintenance of railway
infrastructure; and
(b) the provision with respect to that infrastructure
of network services as defined in [the Railways Act 1993],
but, … 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 drafting approach in the 2005 Regulations is
very different from that in the Railways Act 1993. This is at
least in part because the Regulations are a faithful transposition
of a EU Directive (2001/14/EC). Hence the meaning of infrastructure
manager as set out in regulation 2 of the 2005 Regulations is
neither absolute nor prescriptive: different functions can be
undertaken by different people. The term "infrastructure
manager" needs to be understood by considering what it is
that the 2005 Regulations (and the relevant Directive) stipulate
about the economic management and use of railways.
The purpose of that EU Directive is to liberalise
the provision of rail services across countries with markedly
different rail ownership and management structures. Since the
Directive is concerned with outcomes more than structures, the
2005 Regulations should be understood in the same way.
The infrastructure manager may be, variously, the
body allocating capacity (such as a person granting an access
option), the body which develops a statement showing the terms
on which train paths will be granted, or the body which charges
fees to train operators. On the mainline network all these functions
are carried out by Network Rail which is therefore the sole infrastructure
manager under the 2005 Regulations, in addition to being the infrastructure
manager under the ROGS.
Although the point is academic as regards Network
Rail's current network, the infrastructure manager for the purposes
of the 2005 Regulations is determined by how, if at all, roles
have been divided up on a given network. Again, it is a question
of fact, not of appointment, as to who is the infrastructure manager,
determined by assessing the rights (under contract or arising
from ownership) which are vested in any particular person.
It follows that a body meeting the definition of
"infrastructure manager" under the ROGS is not necessarily
an "infrastructure manager" under the 2005 Regulations.
Taking again the example of CTRL, whilst Network Rail is its infrastructure
manager under the ROGS, it is not its infrastructure manager (for
at least some of the 2005 Regulations) since it neither owns the
link nor has the right to grant access contracts in respect of
the link.
Organisational explanation
Where Network Rail does not own the facility, as
in CTRL and the central tunnel section of Crossrail, the identity
of the infrastructure manger(s) is integral to developing the
organisational structure of the whole project.
The owner of the Crossrail central tunnel section
is intended to be TfL. The infrastructure manager for the purposes
of the ROGS is intended to be Network Rail and this would be established
contractually with TfL. That contract needs to enable Network
Rail to undertake the functions of an infrastructure manager under
the ROGS and it needs to be finalised before the design of the
tunnel fit-out so that Network Rail can seek the necessary safety
authorisation from the ORR. Network Rail's role in relation to
the infrastructure manager under the 2005 Regulations needs to
be decided, taking account in particular that the Crossrail service
needs to operate seamlessly over three networks. Again this needs
to be decided early since defining the access charging arrangements
will be important for project funding.
The three delivery partners (Secretary of State,
TfL and Network Rail) need to reach agreement voluntarily on the
identity of infrastructure manager(s) within the framework of
the legal and related safety requirements. Network Rail is under
no obligation to accept arrangements that it considers would (1)
prevent it from performing its role as infrastructure manager
under the ROGS in relation to the central tunnel section; (2)
prevent it from obtaining safety authorisation from the ORR; or
(3) impair the delivery of access to the main network as approved
in the Crossrail Access Option.
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