Examination of Witnesses (Questions 8760
8760. Well, you are aware that the question
of the current state of the modelling was the subject of evidence
to the ORR on 1 February. Mr Robbie Burns for Network Rail and
Mr Richard Morris for Crossrail gave evidence on that issue and
(Mr Bennett): They gave evidence that
there was a significant number of variables that could be tweaked,
if I can use the expression, but they did not give any indication
of what combination of tweaks would be necessary, for example,
in order to deliver what was required. Hence our concern about
prematurely excluding infrastructure announcements.
8761. Let's just deal with this in steps. Mr
Burns for Network Rail (exhibit 04C-55) says in the hearing before
the Regulator on 1 February, the transcript at lines 19, 20 and
21, that the first iteration of the timetable before the ORR was
"very much about a base position, a base position in terms
of the reliability of our current infrastructure based on our
2006 figures", so the first iteration which was not showing
particularly good PPMs, 72 per cent I think, Mr George mentioned
it last week, was on the basis of a very first run without further
iterations which were, if we look further up the page, please,
at line 6-9, the next iterations expected by August.
(Mr Bennett): That is correct.
8762. So, firstly, the 72 per cent was very
much the starting point, not the end point: secondly, the ORR
knew all about it, so the paragraphs we have been looking at in
both the provisional decision and the final decision were taken
in the full knowledge of the fact that the modelling was at an
(Mr Bennett): That is correct.
8763. I do not want to go through lots of this
transcript because the full copy can be made available, but let's
just look at how the Chairman of the meeting at the ORR summed
up the position at page 84, the bottom: "Are there any final
questions before we break? (No response). In that case, I will
attempt to sum up the session. I think that Robbie"that
is Mr Burns, Network Rail"has helped me greatly in
this by clarifying that this project scheme is in design terms
at a very, very early stage. But the Promoters believe that it
has reached the stage where they require the additional certainty
that an access option would provide and this is the point at which
we now have to decide whether it is appropriate that one should
be put in place ... [line 9] It is helpful to have heard very
clearly that the Department and Network Rail share the clear view
that performance has to reach very much higher levels than the
one that is currently coming out of modelling on the railway in
general and for this particular scheme to work. We heard figures
from Richard"that is Mr Morris from Crossrail"He
had an aspiration to get to 95 per cent PPM on Crossrail and a
belief that 92 per cent is the lowest that could possibly be accepted.
Clearly, the modelling that has been carried out so far, including
the various sensitivity tests, has not yet produced runs which
show that level of performance being delivered. We heard from
Network Rail that their aim is in the refinement of the design
of this scheme, principally, to look at what could be done to
the infrastructure in order to help push the projected performance
levels up to where they need to get to rather than to make substantial
changes to the service pattern."
8764. So, again, no doubt whatsoever that the
stage of the modelling, the need for further refinement and further
work, and the implications of uncertainty were fully before the
ORR and debated before the provisional and final decisions were
8765. CHAIRMAN: Mr Elvin, we obviously
want to get through Mr Bennett's evidence but I think we are beginning
to suffer from not having heard your introduction, because I am
not certain what it is that you are supposing that we should be
able to do about any of this.
8766. MR ELVIN: Cutting to the quick,
my Lord, what is being suggested is that we should be required
to do what the ORR did not require us to do, which was to give
undertakings to carry out specific infrastructure works.
8767. CHAIRMAN: That is right. I have
a list of six of them.
8768. MR ELVIN: And I am simply going
through with Mr Bennett to demonstrate that this issue has been
fully ventilated before the ORR and the ORR has fully recognised
the position before reaching the conclusions that it reached in
the final decision.
8769. CHAIRMAN: You have given an undertaking
as to two of them, I think.
8770. MR ELVIN: One of them, Acton dive-under,
which is already the subject of an undertaking, and it is inevitable
that some work will need to be done at Airport Junction in order
to get access to Heathrow, but I will come back to that in due
course. It all goes to this point, my Lord.
8771. Mr Bennett, cutting to the chase, the
position is that this was an issue debated before the ORR; you
did not urge the ORR to change his provisional decision and require
the infrastructure to be done, we have seen that from the letter;
and what you are asking this Committee to do is something you
did not even ask the ORR to do?
(Mr Bennett): It is something we did not
ask the ORR to do because our prime concern at the ORR hearing
was to establish the broader points, as you have described, about
the reasons for the freight growth.
8772. I am sorry, the question whether we should
be required to carry out infrastructure works was clearly an issue
before the ORR. It was in the provisional decision: it was referred
to in Lord Berkeley's letter; it is in the final decision. It
was open to you if you disagreed to say to the ORR: "No,
we need that additional certainty, please modify your provisional
decision". Yet you did not do so. That is correct, is it
(Mr Bennett): It is correct that we did
not send a letter.
8773. CHAIRMAN: And the ORR could have
done that, could they?
8774. MR ELVIN: Under paragraph 5 of
Schedule 4 to the Railways Act the ORR has power to give directions
as to the terms of the access agreement. He has a broad discretion
to impose such terms as are thought to be appropriate, so that
could have been done by the ORR.
8775. CHAIRMAN: Thank you.
8776. MR ELVIN: And, indeed, the ORR,
Mr Bennett, acknowledges he could have done that but chose instead
the objective test based on performance. So coming to the conclusion,
you will be pleased to hear, what you are asking the Committee
to do is to depart from the industry processes, is it not, because
what you are asking the Committee to do is something which the
industry processes have not concluded should be done?
(Mr Bennett): I suppose the reason for
doing it in part is because we are concerned that the residual
railway clauses themselves also provide the basis of a potential
departure from normal railway industry processes.
8777. Assuming the Minister means what he has
now said in two recent statements in response to the provisional
decision and the final decision, and will face a difficult time,
if I may use that euphemism, before the Public Bill Committee
if he does not keep to his policy statement, assuming those public
bill clauses are going, as the Minister has said they will, you
are asking this Committee on the one hand to be satisfied that
the industry process is the right way forward, and yet on the
other to do something outside the industry processes which the
ORR specifically considered and rejected with your agreement.
(Mr Bennett): I think we are also asking
that clauses 40-42 be removed.
8778. That is a separate issue --
(Mr Bennett): With respect, Mr Elvin,
it is not, because the existence of those clauses has an implication
in our perception of the durability and robustness of normal industry
8779. Mr Bennett, the provisions relating to
arbitration do not purport to rewrite the powers of the ORR under
Schedule 4 of the Railways Act, do they? Once the railway provisions
have gone as a whole they will not be able to rewrite the Schedule
4 powers. They do not purport to do so, do they?
(Mr Bennett): I am grateful for your clarification.
12 Crossrail Ref: P63, Evidence given by Mr Robbie
Burns, Network Rail, to The Office of Rail Regulation, p55, 84-85,
1 February 2008 (LINEWD-34_04C- 055, and -084 to -085) Back