Examination of Witnesses (Questions 9280
- 9299)
9280. "The Crossrail Bill does not have
to address the issue of Infrastructure Manager as these arrangements
need to be settled in accordance with ... ROGS." ROGS is
one of the regulations; much more relevant, of course, is the
Access and Management Regulations 2005. "It follows from
the July 2007 agreement that the Promoter will not sanction detailed
arrangements that would prevent Network Rail from fulfilling the
role of Infrastructure Manager under the ROGS. Ultimately, these
arrangements are being developed in parallel with the Bill process
as part of the project implementation process, and it is difficult
to see what the Select Committee could be invited to do in respect
of these ongoing and complex discussions."
9281. My Lord, can I just pause there to say
a word or two on those points. First of all, it is disingenuous
for the Promoters to have said there were discussions with us
about the operation and maintenance of the network that recognise
(and I use the word) "the commercial aspect" to taking
on that role. Operation and maintenance of a rail network is nothing
to do with the capital costs of providing it, or the costs of
providing access to it.
9282. My Lord, I will take it shortly now, and
if it is in dispute then we may have to trouble your Lordships
with more detail. The 1993 Act provides a very simple structure,
which Mr Berryman referred to.
9283. First, if you have a railway and you want
to use it as a railway you have to have a network licence. To
do that you need to be the operator. You do not need to own it;
you need to be the operator. To grant access onto it, either through
access agreements or franchises, of which your Lordship will be
aware, those have to be applied for by the facility owner. We
are not the owner and we do not want to be and for the purpose
of operation and maintenance, it is nothing to do with that. As
far as those are concerned, the owner—at the initial stages
TfL no doubt and the Promoters—can either go for an access
agreement where the ORR can approve it, and that allows for payment
to them what they pay to it or other measures they want to include,
or the Secretary of State herself can grant a franchise, again
after tender, with the same financial provisions. To obfuscate
operation and maintenance by saying it is all bound up with TfL
and the question of access rights and capital repayments is a
great disservice and, in our respectful submission to your Lordships,
the two should be understood separately because operation and
maintenance is of a wholly different importance to the public
interest from the recovery of capital assets, which no doubt are
important for delivery of the proposal but should not imperil
the assurance for the public interest of proper operation, safety
and maintenance.
9284. My Lord, can I also say this: I have referred
to the 2005 regulations which again are based on the infrastructure
manager. Under the 2005 regulations, regulation 12 is the provision
by which we, the operator and maintainer, recover our costs.[13]
It is totally separate from access rights and all the rest of
it. It is a simple basis: the Office of the Rail Regulator determines
the charging framework and the charging rules. We then must charge
as he has determined and we must utilise those fees to fund our
business, in other words we have to use it for maintaining the
railway, so it is all subject to the European Directive and, what
is more, we are put under a statutory duty to justify the charges
and show that they comply with the methodology rules and statement,
so there is a very tight framework by which we can only charge
what is reasonable and we only use it for what we have been brought
into business to do. That is a structure that exists under the
1993 Act. It has been put on the board now, my Lords, but it is
a very simple structure and it simply does not need to be caught
up in whatever negotiations TfL want to carry on; the structure
is there. So we say it is totally disingenuous for them to have
said that this is bound up with some capital discussion about
no doubt interest payments, the question of hypothecation, or
whatever it might be.
9285. CHAIRMAN: Lord James?
9286. LORD JAMES OF BLACKHEATH: Can I
ask you to think this one through—and I think the answer
is probably going to be very simple but I would like to hear it—let
us take an actual case that we have already had before this Committee
relating to a Grade I building in Soho which is the only Grade
I building anywhere near the route of central London Crossrail
and let us suppose that the obligations for protecting that building
during the construction have properly been discharged by the Promoters,
and I am satisfied that there has been a significant dialogue
to that effect and that is fine, but let us suppose that in so
doing they have preserved the life of the building at the moment
but after the completion of all the construction work that some
new factor emerges thereafter which is no longer the responsibility
of the Promoter because his time has ended but cracks begin to
appear and remedial action is required then. Where in this whole
process does this responsibility shift from the Promoters to any
new authority and how clear-cut is that continuing responsibility?
9287. MR PURCHAS: My Lord, the facility owner
remains here the Promoters, TfL and the Department, they built
the thing and it is theirs. They are able to sell it elsewhere
but they remain the owner and on the face of it they will be liable
for the nuisance that is caused subject to the statutory protection.
9288. LORD JAMES OF BLACKHEATH: So there
is a seamless continuity of responsibility for secondary errors
occurring after construction? That is my concern.
9289. MR PURCHAS: Indeed, my Lord, the usual
protection for statutory authorisation, if they have done it negligently
then they can be liable, as I understand the position.
9290. LORD JAMES OF BLACKHEATH: It might
not be negligent; it might just have been unavoidable fact of
circumstance.
9291. MR PURCHAS: Then there will be compensation
provided for under the Act, my Lord.
9292. LORD JAMES OF BLACKHEATH: Okay,
but it is a seamless responsibility, that is what I wanted to
know.
9293. MR PURCHAS: Mr Elvin will put me right
on that but it is nothing to do with us anyway. We have a very
modest ambition in life; we are in business to operate and maintain
safe and efficient railways, and that is all we want to do.
9294. My Lord, I have essentially made the first
comment on what is said here and I think I need not elaborate
on that. That is where we started off in the response. My Lord,
on 9 April, emailed to one of our team—and I say that because
it did not filter, as it were, upstairs or down the corridor until
a little later—is an interesting document and you have got
it at tab 22.[14]
Just so you have the context of this, your Lordships we were seized
of the matter at this stage, 9 April, it was emailed to us—
9295. MR ELVIN: By whom?
9296. MR PURCHAS: By TfL. TfL emailed it to
us. I think it may have come from the Crossrail team.
9297. MR ELVIN: It did not.
9298. MR PURCHAS: It came from the Promoters'
wider team and if need be I will produce the email.
9299. MR ELVIN: It is important.
13 Committee Ref: A54, The Railways Infrastructure
(Access and Management) Regulations 2005 (SI 2005/3049) (SCN-20080430-020) Back
14
Committee Ref: A54, TfL-Regulation of the Crossrail Central Tunnel
Section (SCN-20080430-022) Back
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