Select Committee on the Crossrail Bill First Special Report


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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