Examination of Witnesses (Questions 9060
9060. And we see agreement all the way through.
If we go to the second page, 003, we get to the clauses where
the provisional decision on the capacity issues were considered,
26-29, and we see there: "We understand the reasons for ORR's
decision not to specify infrastructure. Freightliner considered
the specification of the outputs from the provision of infrastructure
to be a vital tool in terms of ensuring that acts of omission
from Crossrail's infrastructure should not cause other operators'
rights to be subsumed as a result. In the presence of the specific
objective capacity and performance tests, and the proposed changes
to the change control mechanism in paragraph 35, we consider that
ORR's decision not to specify infrastructure to be acceptable."
9061. So you specifically wrote saying you were
in complete agreement with the ORR's decision to specify the objective
test based on outputs, and not to specify infrastructure?
(Ms Durham): You showed this exhibit earlier,
so we have seen it before. We did say that and we felt that the
Regulator has done as much as he could in his role of allocating
capacity, and it was acceptable. However, we are still concerned
that there will later on be a lot of political pressure on this
scheme, and we seek further comfort that some of the schemes,
not all, will be committed to. These are not detailed technical
specifications: they are outline.
9062. I am sorry, Ms Durham, but have I missed
something? You went out of your way to write to the ORR not only
not to disagree with but to positively support the ORR's decision
not to specify infrastructure but to specify output. What has
changed since 16 March to cause you to come before this Committee
and say the precise oppositethat you want, despite having
your endorsement of the ORR's decision, that infrastructure to
(Ms Durham): You have not missed anything;
we clearly said that. Our view was that the Regulator had gone
as far as he could go, and we considered that it was up to the
Committee to decide whether this is an appropriate way to deal
9063. Is it your case to this Committee that
in exercising his power to direct the terms of the access agreement
it was beyond the powers of the Rail Regulator to require the
infrastructure improvements to be carried out?
(Ms Durham): I did not say it was beyond
his powers but I do not think he saw it was appropriate in this
case for him to do this.
9064. So the ORR made a decisionI am
sorry, I do not mean to interrupt.
(Ms Durham) What I was going to say is
that obviously there are two parallel processes, the access option
process, which we do fully support, and there is the Crossrail
Bill process as well and obviously that must have a purpose and
we see one of the purposes of that is that the Committee should
consider whether it is appropriate that Crossrail make certain
9065. Since 16 March, nothing has changed as
regards certainty or uncertainty, has it?
(Ms Durham) No, it has not, but I have
explained my position twice now and it is the same.
9066. Well, it still is as clear as mud, I am
afraid, as far as I am concerned and I will come back to it in
a moment. So nothing has changed about certainty or uncertainty.
The only thing that has changed is that the Minister has made
a public announcement of his intention to seek an amendment to
the Bill to remove the rail powers. That has now been confirmed.
(Ms Durham) Yes, which we welcome.
9067. So that has been a change in favour of
your position. There have been no further iterations of the modelling
work or anything of that description? Is that right?
(Ms Durham) That is correct.
9068. There have been no further changes with
regard to the proposed infrastructure works and nothing further
has been designed since 16 March?
(Ms Durham) That is correct also.
9069. And it remained open to the ORR to require,
as one of the terms, that these works that you now ask the Committee
to impose, that they should have been imposed as part of the access
(Ms Durham) Yes. As I say, we did not
really feel that the Regulator was the place for that decision
to be made.
9070. Well, now is your chance to tell the Committee
why, given that the ORR had the full power, having heard all of
the representatives of industry, not just those petitioning this
House, with all that information which is also not available to
this House, why you chose not to ask the ORR to impose the infrastructure,
but you now ask the House of Lords to do so. What is the reason?
(Ms Durham) Because we really saw this
as a planning requirement rather than a regulatory requirement.
9071. That is your best answer, is it?
(Ms Durham) Yes.
9072. So you are not aware of the situation
where, on a planning inquiry, you have two parallel processes
and, as a matter of planning policy, if you have got another consents
process, the planning decision-maker will say, "Well, that's
not really a matter for me. That's for the other decision-maker"?
That is a national policy, is it not? Planning will not regulate
something which is elsewhere regulated, for example, environmental
licensing, waste licensing, things like that.
(Ms Durham) I have to say that I am not
an expert on planning, I am an expert on rail freight.
9073. You are not an expert on planning, so
the view you tendered earlier was not based on any detailed knowledge
of how planning operates?
(Ms Durham) No.
9074. But that is your reason for asking this
Committee to take a different view?
(Ms Durham) Well, I believe that it is
up to the Committee to decide whether it is their role to decide.
9075. I appreciate that. I am just trying to
understand why you say one thing to the Rail Regulator and the
entirely opposite thing to the Committee. However, I do not think
I am going to help the Committee by exploring that issue any further
and I think we have got as far as we are going to get on that.
Can we go back to your Exhibit 29 please. This is what your needs
are. You say you have certain needs. So far as those last two
bullet points, those works, are concerned, Barking to Gospel Oak
is already under way.
(Ms Durham) That is correct, yes.
9076. Felixstowe to Nuneaton, that is funded
under TIF outside of Crossrail, is it not?
(Ms Durham) It is partially funded under
9077. And, as I understand it, Network Rail's
view is that that should be under way by 2012. Is that right?
(Ms Durham) We are not asking for additional
funding here. All we are asking is for the Committee to recommend
to the Government that those works are finished before the Crossrail
works are started.
9078. So your expectation is to ask the Committee
to make a recommendation on something which lies outside the Bill,
to get on with those works which are Network Rail's responsibility
before Crossrail is started and even though Crossrail does not
come on line until 2017?
(Ms Durham) Yes, that is right because
it is very important for the UK economy and for businesses that
we can keep freight moving, and that is why we are recommending
it. Otherwise, there is a risk that we will not be able to continue
to supply shops, and we are moving goods like clothes and foodstuffs
for shops that people buy every day, so it is very important that
there is a consistent supply. Otherwise, it affects the economy.
9079. Indeed all of the rail industry, both
passenger and freight, affects the economy.
(Ms Durham) Correct.