Examination of Witnesses (Questions 10320
10320. Roughly how many more than the six or
seven which have been stipulated by the Petitioners does that
(Mr Berryman) About half a dozen other works of one sort
10321. Would you be able to achieve the 92 per
cent simply by being required, on current assumptions, to carry
out these six or seven works?
(Mr Berryman) Probably not. In fact I would go further. We
definitely could not achieve the 92 per cent without doing the
Maidenhead works; I am confident about that.
10322. So in fact if we were tied down by undertakings
to do these works, it still would not get us to achieve the 92
per cent and the industry would still be reliant upon the ORR's
directions to achieve it?
(Mr Berryman) Yes, that is right. On their own, these works
would not achieve what the Petitioners are looking for.
10323. I am not going to ask you any questions
which Lord Berkeley put to you with regard to planning, but I
am going to make some legal submissions about those, Mr Berryman;
I appreciate you are not a planner. In terms of the ORR's decision,
the ORR's decision with regard to the two paths that have not
been allowed in the access option, they are still modelled within
the assumptions. Is that right?
(Mr Berryman) Yes, they are indeed and that is part of the
ORR's decision, that we should continue to model on the basis
that those additional two paths will be made available.
10324. What does that signify in terms of modelled
capacity if in fact the two additional paths cannot be reintroduced
at another stage?
(Mr Berryman) Well, that would considerably ease the capacity
problems which exist in the model. On the section between Airport
Junction and Maidenhead, for example, that would be reducing our
number of trains by half which would have a significant impact
on how well the system performed.
10325. So to what extent could that issue impact
on the need to spend tens of millions on the infrastructure works?
(Mr Berryman) It would significantly impact on that and I
think the reason that the Regulator did not give us all the paths
was actually to do with the economic case primarily. What he said
was that he could not see that there was a business case for four
trains an hour to Maidenhead. We think there is because four trains
an hour is a turn-up-and-go service where people just come along
and get on the train, and we know by experience that traffic flows
increase significantly when you
10326. LORD SNAPE: But not from the west
of England? You said in an earlier exchange to myself and to Lady
Fookes that there was not the traffic from the west of England
or from south Wales for a western entrance into Heathrow Airport
and now you are saying there is traffic for four trains an hour
to Maidenhead, even though the professionals think there is not.
Is there some conflict there?
(Mr Berryman) No, I do not think there is. I would not say
the professionals do not think there is, but it is just that there
is no reliable model for inter-peak flows in London.
10327. I see, but there is for traffic from
the West Country going to Heathrow Airport via Paddington?
(Mr Berryman) Well, there is, my Lord, because that traffic
is not `peaky'. The set-up is that in London itself it is the
peak hours which are modelled and most transport decisions are
based on those peak-hour models. The inter-peak modelling is actually
very sparse or indeed non-existent. Long-distance train services,
Intercity train services, are actually modelled on an all-day
basis, so, as you will know from your own experience, they are
not as peaky as commuter traffic is and obviously we do expect
that further modelling work will be needed for the inter-peak
in the London area.
10328. In my experience, Mr Berryman, and this
is not aimed at you personally, senior managers of the railways
can prove anything; indeed some of them have. Either they do not
want to run any trains, therefore, they do not kill anybody or
they run too many trains, in which case it is somebody else's
fault. I am not suggesting for a moment that that is a personal
remark aimed at you, but anything can be proved. If you are responsible
for producing these statistics yourself, you can prove anything
and railway managers have consistently done that over the years,
in my experience.
(Mr Berryman) I would not like to comment on that, my Lord.
10329. LORD SNAPE: It was not aimed at
10330. MR ELVIN: My Lord, I have no further
re-examination, unless your Lordships have any further questions
for Mr Berryman.
The witness withdrew
10331. MR ELVIN: I think that means we
have now concluded all the evidence on the rail industry issues,
in which case I was going to do a comprehensive closing and then
I imagine I will be followed in order by Lord Berkeley and Mr
10332. CHAIRMAN: I would have thought
that the two of them would follow you, yes.
10333. MR ELVIN: I do have something
in writing which, as Mr Berryman has reminded me three times,
reached him at ten to two this morning, so it does not cover everything
you have heard today, is what I mean, and it has a lot of typos
due to my inability to type at one o'clock in the morning, or
indeed at any time.
10334. My Lords, the Promoter and the rail freight
industry start with the following common ground. Firstly, rail
freight of course is important to the economy. Secondly, Crossrail
is welcomed and the rail freight industry seeks in no part to
argue against it. Thirdly, it is agreed that it is necessary to
balance the various competing interests seeking to use the rail
infrastructure, being passenger, freight and Crossrail as a new
passenger service. Fourthly, it is agreed that the appropriate
means to do so is via the normal regulatory processes for the
rail industry, including the access regime under the independent
supervision of the ORR in the Railways Act 1993 and, as indeed
was said by Lord Berkeley on Tuesday, they wish to ensure that
"Crossrail will comply fully with industry processes which
have been developed over more than the last 12 years, and they
are accepted by the industry as being fair and transparent".
Fifthly, it is agreed that the process and decision reached by
the ORR on 14 April was fair, transparent and independent and
it weighed the representations, evidence and interests of a wider
sector of the rail industry than are represented by the Petitioners
this week. As Lord Berkeley put it on Tuesday, "The ORR consulted
fully and the Petitioners I represent have welcomed the final
decision as being fair and reasonable and in line with its duties
under section 4 of the 1993 Railways Act, as amended, `to promote
the use of the railway for the carriage of passengers and goods,
and the development of that railway network to the greatest extent
that it considers economically practicable'". Ms Durham,
for Freightliner, also on Tuesday, said that, "Freightliner
fully supports the Regulator's decision on the access option.
We make it absolutely clear we do not want any amendments to that,
and it is right that the independent Rail Regulator made that
decision", and she said that unprompted by me in her evidence-in-chief.
10335. CHAIRMAN: So I should think.
10336. MR ELVIN: EWS wrote to the Regulator
on 17 March 2008, indicating that it "understands the ORR's
proposals to condition the use of the rights on achieving certain
outputs". As your Lordships know, the ORR has wide powers
to direct the final terms of the access option under paragraph
5 of Schedule 4 to the Act which I have set out for convenience
in the note. That power would enable the Regulator to direct that
the access option should be dependent on the carrying out of infrastructure
enhancement works in order to maintain capacity or offset loss
of capacity, which might give rise to the new access option.
10337. The ORR, having received evidence and
representations, and conducted a hearing with DfT, Network Rail
and industry representatives on 1 Februaryand you have
the exhibits of the transcript of that hearingissued initially
a provisional decision and then a final decision which made it
clear that the ORR had considered whether to require certain works
to be carried out. You can see the discussion in the transcript
and you have seen some of it when I cross-examined earlier today.
It was decided not to require those works but to specify an objective
test which focused on outputs and an objective means to ensure
that capacity was maintained, including taking account of future
freight growth to 2015.
10338. Although some time was taken by witnesses
to explain the need for growth, it was agreed that freight growth
was one of the factors which had been accepted at the ORR hearing
and was already included in the objective test. Failure to meet
the requirements of the ORR's directions will prevent Crossrail
having access to the network and may lead to its access rights
being lost. This is a serious incentive for a £16 billion
10339. The freight industry, although further
representations were made on the terms of the provisional decision,
welcomed the approach of the ORR. I just go through the same points
that are common ground: (1) Accepted freight growth; (2) Imposed
an objective test; (3) Imposed importantly a change control mechanism
which ensures that any conflicts with any other existing users
of the network which are protected by the decision are resolved
in favour of the existing users. If those matters are now resolved,
as I made clear to your Lordships this morning, Crossrail will
lose paths. I set out the reference to the decision. It proceeds
on the basis that infrastructure improvements would be needed
but did not require specific works to be carried out as part of
the access option.