Examination of Witnesses (Questions 10100
10100. Am I right in suggesting that the CTRL
scheme came forward in advance of Part G of the Network Code?
(Mr Oatway) I believe it was enacted in 1996.
10101. So far as Transport and Works Act Orders
are concerned, when you were giving your evidence-in-chief you
said that whenever you get hold of a TWA Order the first thing
you do is to look for the particular clause that you are interested
in to see whether it is there or not.
(Mr Oatway) Yes.
10102. Can I take it from that, that particular
clause is not always included in the Transport and Works Act Orders?
(Mr Oatway) Commonly it is now. It was not so in the past
and we had to raise concerns and give evidence in front of the
Transport and Works Inspectors to try to petition for it.
10103. MR TAYLOR: Thank you very much
indeed, Mr Oatway.
Re-examined by MR
10104. MR GEORGE: Just two matters. First
of all, going back to the beginning of your cross-examination,
you were asked about your existing access contract and you said
that it would expire in December 2015. When an access contract
expires, what is the ORR's policy?
(Mr Oatway) There
is a presumption that your existing access rights will roll forward
subject, obviously, to making an application and the ORR approving
that. Indeed, I think the ORR has assumed existing rights will
roll forward in its decision on the access option for Crossrail.
10105. If we could please put up EWS31, page
one, you were asked a question to the effect that those provisions
there for network changes apply in ordinary circumstances and
you agreed that they do apply in ordinary circumstances.
So far as the proposal to construct Crossrail, do you regard that
as ordinary circumstances for which the existing standard industry
provisions were designed?
(Mr Oatway) No, I think Crossrail is an exceptional
circumstance. It is an exceptionally huge project that certainly
does not come along every day.
10106. There has been a reference made now to
some consideration in the industry to changing the industry mechanisms
but are they being changed in order to cater for the ordinary
circumstances or for the very special circumstances of a new railway
such as Crossrail?
(Mr Oatway) They are mainly looking at the ordinary processes,
although they have touched upon, as Mr Taylor highlighted, that
they are looking at modifying G9 to attract compensation, but
those discussions are at an early stage.
10107. Are you aware of any Transport and Works
Order for major rail works that does not have compensation clauses
in it similar to those to which you have drawn attention in respect
of the East London Line?
(Mr Oatway) Yes.
10108. That example?
(Mr Oatway) They are ones that are promoted by Network Rail
itself. If you ask if there are any third party Transport and
Works Orders then I am not aware of any at the moment.
10109. MR GEORGE: Thank you very much.
10110. LORD YOUNG OF NORWOOD GREEN: Just
to get a sense of the proportion of your concerns on compensation.
What is the area of dispute that we are talking about? If I said,
looking at it, it looks likeI am guessing95 per
cent of problems that might occur from either the network changes
will be covered under (a), would I be exaggerating?
(Mr Oatway) I would say it would at least be in the eighties,
if not higher, although we do not know exactly what works are
going to be built, which are all uncertain at the moment because
of the flexibility the Promoter has asked for. We do not know
exactly which works are going to be built so I cannot really say
they would all fall into that category. Giving an honest guess,
I would say it would certainly be in that category, the eighties.
10111. At least the eighties, and it could be
as high as ninety?
(Mr Oatway) It could be, for most of the works.
10112. LORD YOUNG OF NORWOOD GREEN: Thank
10113. CHAIRMAN: The undertakings relate
to five/six specific works. They do not look to me as though they
are anything out of the ordinary in terms of engineering on the
railways. Are they?
(Mr Oatway) The dive-under and the junction works at Heathrow,
my Lord, are quite massive. The other works, the four that Mr
Smith outlined in his evidence, as he said, are not huge works,
but there are 24 works in the Crossrail Bill and there could be
other works done as well which we do not know about.
10114. Which are the works that are going to
require change effectively in the law in order to deal with your
(Mr Oatway) Well, we believe that the whole Crossrail Bill,
because it is a lawful enactment, Network Rail could be directed
to do these network changes under G9 and, therefore, not pay any
compensation for them. However, now we have the undertaking from
the Promoters that that will not be the case, categorically I
am quite happy on that point.
10115. So what is left in terms of this large
project that is not covered, either by the undertaking or by the
existing machinery of the industry?
(Mr Oatway) Just any temporary disruptions that occur which
last less than six months, which individually might be quite slight
but collectively, over the course of a ten-year project, would
10116. But I imagine that this happens all the
time. If you have re-configuration of the West Coast Main Line
it is a massive project, and there must be a large number of changes
in configuration of the track and that sort of thing over a long
period of time to which the industry processes apply, do they
(Mr Oatway) Some of those will be network changes and others
will be day-to-day maintenance and renewals. There are often lengthy
debates with Network Rail over whether a possession is a network
change possession, in which case they pay compensation, or is
a maintenance and renewal possession, in which case it does not
attract compensation for freight operators. Those debates go on
all the time and that is one of the reasons why the industry mechanism
is being re-looked at at the moment by the group that was referred
to, to see if that sort of murkiness can be cleared.
10117. CHAIRMAN: I see. Thank you.
10118. MR GEORGE: My Lord, that concludes
the evidence which I put before you.
10119. CHAIRMAN: Thank you, Mr George.
I do not know what Mr Taylor, or you, Mr Elvin, want to do about
The witness withdrew
25 Committee Ref: A57, Non-compensatable disruption