Examination of Witnesses (Questions 10080
- 10099)
10080. So, again, where disruption is caused
through possessions, where disruption is caused so that the performance
regime is affected, the industry accepts that compensation should
not be payable in respect of losses where at least 12 weeks' notice
is given?
(Mr Oatway) For renewal and maintenance works, yes.
10081. Again, it is an example of the industry
acknowledging that there has to be an element of give and take
between those who need to maintain the network and introduce changes
to the network and those who operate on it?
(Mr Oatway) Yes, that is right. There is an expectation by
train operators that Network Rail must carry out renewal and maintenance
works on its network which will cause levels of disruption.
10082. MR TAYLOR: To provide an analogy,
it is a bit like my next door neighbour deciding that he is going
to re-roof his house and for a number of days while the work is
being done I am disturbed in the enjoyment of my residential property
next door. I cannot sue him, I just have to put up with it, just
as he will have to put up with it when I re-roof my house. That
is the analogy here, is it not?
10083. BARONESS FOOKES: But if he builds
a big extension, is that not rather different?
10084. MR TAYLOR: Again, my Lady, in
that situation I cannot sue him if he disturbs me unless it gives
rise to a nuisance of some kind which is actionable. You take
the point, the industry processes allow for an amount of give
and take, do they not?
(Mr Oatway) For day-to-day maintenance and renewal of the
network, yes.
10085. What you are seeking through the undertaking
that you want is the introduction of compensation for losses which
the industry mechanisms already acknowledge should not be compensatable.
(Mr Oatway) Yes, that is correct.
10086. So rather than seeking to apply the industry
mechanisms which acknowledge this element of give and take, you
are saying, "No, no, no, we don't want to apply those mechanisms
any more", are you not?
(Mr Oatway) No. What I am saying is I am pointing out that
the industry mechanisms are not adequate in certain cases and,
therefore, to meet the Promoter's H2 declaration in its third
bullet in paragraph 6.3, which says, "Thirdly, where an industry
mechanism does not exist and one has to be drawn up, the principle
of `no net benefit, no net loss' will be applied. So if an industry
mechanism does not provide to provide no net benefit, no net loss
compensation, one will be drawn up", I am merely asking for
one to be drawn up.
10087. Mr Oatway, industry mechanisms do exist.
We have got the industry mechanism in Part G, which we have been
through, and we have got industry mechanisms in Schedule 4 and
Schedule 8. The mechanisms do exist, but within the mechanisms
they acknowledge that there are elements of loss which should
not be compensatable.
(Mr Oatway) That is correct, but that does not meet the Promoter's
stated aim to compensate all parties affected on a no net loss,
no net gain basis. You are basically saying that because our standard
industry mechanism is not adequate, that is our fault and, therefore,
you are not going to plug the gap. In previous precedents, as
we have put out in the Transport and Works Act Orders, that has
been acknowledged and the gap has been plugged. I am merely seeking
to use those precedents here to ensure that continues.
10088. These aspects of compensation in relation
to Part G of the Network Code are currently the subject of industry-wide
consultation, are they not?
(Mr Oatway) Yes, they are being discussed in a working group
for freight operators.
10089. If the industry, through that process
of consultation, decides to alter the mechanisms for compensation
and, indeed, perhaps even to extend it in the way that you are
suggesting, the commitment in Information Policy Paper H2 to apply
industry mechanisms would apply to any such extended system, would
it not?
(Mr Oatway) It may do.
10090. Let us move on from that.
10091. LORD YOUNG OF NORWOOD GREEN: Are
you giving an undertaking that it definitely will apply if the
industry mechanism changes as a result of those discussions?
10092. MR TAYLOR: My Lord, I think that
undertaken has already been given. That was in the paragraph we
looked at before.
10093. LORD YOUNG OF NORWOOD GREEN: I
am just clarifying that is the case.
10094. MR TAYLOR: If we go to Information
Paper H2 and to paragraph 6.3 that we were looking at before on
page four, it is the second point: "Where an industry mechanism
for compensation exists, it will be used". That is intended
to relate to the industry mechanisms as they apply at the relevant
time.[24]
10095. LORD YOUNG OF NORWOOD GREEN: I
would not say it is explicit, but if you are confirming that you
are meeting Mr Oatway's concern that should that mechanism change
you will apply it—
10096. MR TAYLOR: I am confirming exactly
that.
10097. LORD YOUNG OF NORWOOD GREEN: Thank
you.
10098. MR TAYLOR: One last point. You
mentioned the CTRL position. The CTRL was promoted, I think, in
the early 1990s, am I right.
(Mr Oatway) That is correct, yes.
10099. When did Part G of the Network Code first
come into existence?
(Mr Oatway) 1994.
24 Crossrail Information Paper H2-Railway Compensation
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