Examination of Witnesses (Questions 9960
- 9979)
9960. And that is a matter in respect of which,
as you heard, Mr Elvin is going to be able to provide us with
some costs. Have you yet heard any explanation of the difference
between those works and the Acton dive-under to which the Promoters
were perfectly happy to commit?
(Mr Smith) I have heard no explanation of any difference.
9961. And if we concentrate on 2017, and aim
to have Crossrail operating in 2017, how stand our proposals in
relation to that objective?
(Mr Smith) We need these pieces of infrastructure to be able
to ensure that the Great Western Main Line can accommodate all
the services that Crossrail want to operate other than the two
off-peak services, and can accommodate the freight services, and
can accommodate the complementary passenger services, and, we
keep forgetting, the long distance high speed passenger services
to the South West, to Bristol and to south Wales.
9962. If the aim, as I say at present, is to
achieve 2017, is that assisted by some finality now or is it irrelevant
to that objective?
(Mr Smith) Certainty now is always better than uncertainty
lasting into the future. From a very parochial perspective, to
be able to give our customers the assurance now that the whole
Crossrail process has created comfort for all users of the railway,
that there will be sufficient capacity for everybody's needs,
is going to make it far easier to sell rail freight as an environmentally
sustainable mode that people should be using more of in the future.
9963. We heard about the word "de-scoping"
the project earlier, and we had it defined and explained to us.
Can you see any possible justification for a de-scoping of the
project to exclude those works which are in EWS 26?
(Mr Smith) I would be extremely concerned were the project
to be de-scoped in that manner, because I have seen or heard of
no alternatives to these works which are necessary to create the
necessary capacity for all users of the network.
9964. MR GEORGE: Thank you very much.
Those are the only questions I have.
9965. CHAIRMAN: Thank you very much,
Mr Smith.
The witness withdrew
MR NIGEL
JAMES OATWAY,
Sworn Examined by MR GEORGE
9966. You are Nigel Oatway. Can you just explain
to their Lordships the position you hold with EWS?
(Mr Oatway) Yes. I am Nigel James Oatway; I
am the access manager for EWS, a post I have held for 14 years.
I have worked in the rail industry for 27 years and within the
rail freight industry for 15 years. In addition to my role as
access manager of EWS I also hold a number of positions on key
rail industry groups and committees. These include being a committee
member of the Class Representative Committee, which oversees and
approves changes for the industry Network Code; a Committee member
of the Access Disputes Committee, which adjudicates on access
disputes between industry parties, many of which arise from the
Network Code; and also I am a committee member and deputy chairman
of the Delay Attribution Board, which oversees the guidelines
for specifying how performance delays are allocated and attributed.
9967. I think, Mr Oatway, if there are any questions
about change control mechanism and the like it is, so to speak,
your daily diet, is it not?
(Mr Oatway) I will do my best to answer any.
9968. And what are your particular responsibilities
with the EWS, please?
(Mr Oatway) My key responsibilities within EWS are managing
our track access arrangements with Network Rail for running our
services on the network. I am also heavily involved with dealing
with rail regulatory compliance, particularly matters dealing
with access and licensing regimes. This also includes the Network
Code, as I have referred to earlier, which is the document containing
a set of common rules which apply to network access, incorporated
by reference into each track access agreement, apart from a very
small number of exceptions.
9969. Mr Oatway, earlier this morning Mr Smith
referred to what happened on the West Coast Main Line to freight.
I think you gave evidence, did you not, at the inquiry into the
Transport and Works Order in respect of those works, is that right?
(Mr Oatway) Yes, in respect of the four tracking of the Trent
Valley.
9970. Precisely because there was concern about
the likely effects on freight of the works and you were seeking
safeguards?
(Mr Oatway) That is correct.
9971. Could we now, please, just turn to the
whole subject of access arrangements? Could you just very briefly
explain the position so far as EWS' access arrangements?
(Mr Oatway) Yes. EWS, along with all other rail users, have
entered into long and short-term access contracts, or framework
agreements, which have to be approved by the Office of Rail Regulation,
and these give them the right to use the railway network and are
commonly known as track access contracts. There are also station
access contracts and facility access contracts, and also connection
agreements which govern the connection of third party terminals
to the network, but they are all access arrangements which are
dealt with under the access provisions of the 1993 Act. These
contracts invariably last for many years at a time and therefore
allow rail companies to plan the use of the network and offer
services to their customers with a high degree of certainty and
assurance. For example, EWS' track access contract with Network
Rail for the majority of its train paths expires in December 2015;
EWS' future business plans, however, are based on the presumption
that this access contract will be renewed or extended before that
time, because it is absolutely essential for rail freight companies
and their customers to be able to rely on the contractual rights
within their track access contracts. If EWS could not use or reach
its freight terminals, or lost its train paths, it would be in
breach of its contracts with its customers and its business would
suffer greatly. What is more, the danger of this happening will
also discourage any new customers from being attracted to rail
as a preferred mode of transportation for their traffic, as they
would see rail freight as being unreliable, uncertain and subject
to material interruption beyond the control of the rail freight
operators.
9972. If we now turn to the railway clauses
themselves, I indicated in opening that EWS welcomed the removal
of certain clauses from the Bill, and you have had the opportunity
of looking at the new draft clauses which it is proposed to deposit
elsewhere. So far as that is concerned, are there any comments
you wish to make other than the matter of clause 41(3) which we
will come to in just a moment?
(Mr Oatway) No. We very much welcome the Promoter's policy
decision to delete the majority of the railway clauses in the
Bill, but we believe the Promoter has maybe erred in determining
to bring forward the related amendments at subsequent public stages
of the Bill and only prepared draft amendments for this Committee
to consider. Our reasoning on those points was set out in detail
to recent letters to the Clerk of the Committee and the Promoter,
so I do not propose to go into those in any great detail.
9973. You are simply hopeful, as I understand
it, that when those clauses reach their final form they will be
no more damaging to private interests than the present proposed
clauses?
(Mr Oatway) That is correct.
9974. Now, can we then turn to clause 41(3)
in the Bill dealing with arbitration in relation to various forms
of assets?[11]
I addressed the legal side of this matter yesterday and I have
really only two questions for you in relation to clauses 40 and
41(3), and the first is in connection with the CTRL railway. I
introduced the Committee yesterday to the provision there whereby
they had an equivalent of clause 40 but they did not have a clause
41(3); they simply had a standard arbitration clause. Has that
given rise to any difficulties or problems or delays to the construction
of CTRL which might justify the inclusion of clause 41(3)?
(Mr Oatway) None that I am aware of.
9975. And can you yourself see any need for
clause 41(3)?
(Mr Oatway) None.
9976. We will leave that matter, then, and move
on to the question of compensation, and in this context I think
it would be helpful if we had the Promoter's paper, H2 Railway
Compensation, on the screen, paragraph 3, page 2.[12]
9977. So far as the basic scheme of the proposals
of the Promoters, I think that is set out in paragraph 3, is it
not, of that particular document?
(Mr Oatway) Yes, it is.
9978. And they there say that they believe the
"standard industry arrangements should be appropriate for
compensating the railway industry for the loss of, or disruption
to, services during the construction, apart from the specific
instances set out in sections 4 and 5 below".
It then says that in certain circumstances,
where standard arrangements do not provide an appropriate remedy,
specific non-standard arrangements will need to be developed.
I think in summary your case is to say that the Promoters have
failed to identify a particular category where a specific non-standard
arrangement is appropriate over and above the matters referred
to in H2?
(Mr Oatway) That is right. I believe there are gaps, yes.
9979. Now, so far as the basic principles of
H2, that is the no loss/no gain principle, do you take issue with
that in any way?
(Mr Oatway) Absolutely none. I think that is perfectly fair
and reasonable, that compensation should be given on a no net
gain/no net loss basis, ie holding the affected parties neutral.
11 Crossrail Bill, Session 2007-08, HL Bill 14, Clause
41(3) (SCN-20080501-001) Back
12
Crossrail Information Paper H2-Railway Compensation (LINEWD-IPH2-003) Back
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