Select Committee on the Crossrail Bill Minutes of Evidence


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 (LINEWD-IPH2-005) Back


 
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