Covering letter to these regulation 29 and regulation 30 applications
| Date | 29 April 2016 |
| Section | Transport for London appeal under regulation 29 and complaint under regulation 30 of the Railways Infrastructure (Access and Management) Regulations |
Transport for London
Crossrail
- Oper ation s
25 Canada Square
Canary Wharf
London
E14 5LQ
tfl.gov .uk
29 April 2016
Dear Joanna
Applications pursuant to Regulations 29 and 30 of The Railways
Infrastructure (Access and Management) Regulations 2005 (the
"Regulations")
Introduction and background
1 As the Office of Rail and Road ("ORR") will be aware, Heathrow Airport Limited
("HAL") is the infrastruc ture manager of the railway infrastruc ture (including
stations) which forms part of the spur from the Great W estern Main Line to
Heathrow Airport (the "Heathrow Rail Infrastructure"). The ORR is at present
considering certain issues regarding the c harges that HAL is seeking to levy for
access to the Heathrow Rail Infrastructure1.
2 Transport for London ("TfL") has engaged with HAL for several years in an
effort to secure access to the Heathrow Rail Infrastructure for the operation of
Crossrail services to the airport. This engagement has been with the support of
the Department for Trans port (the "DfT") as co-sponsor of the Crossrail project
and on behalf of TfL and its Crossrail concessionaire from time to time
(currently MTR Corporation (Crossrail) Lim ited ("MTR Crossrail")).
3 In 2008, in exchange for DfT agreeing not to exercise certain powers s et out in
the Crossrail Bill, HAL agreed to take the necess ary steps to become com pliant
with the Regulations (it being ac knowledged by HAL – as c onfirmed by the
ORR in 2013 (see Appendix 3) – that the Heathrow Rail Infrastructure is subject
to the Regulations). This agreement was reflec ted in a Deed of Undertaking
between the DfT and HAL dated 30 May 2008.
1 http://orr.gov.uk/consultations/closed-consultations/policy-consultations/charging-frame work-consultation
Joanna Whittington
Chief Executive Officer
Office of Rail and Road
One Kemble Street
London
WC2B 4AN
Page 2 of 37
4 In order to comply with the Deed of Undertaking (and m ore generally to c omply
with the Regulations ) HAL was required to publish a Network Statement and
Network Code on or before 30 May 2015 (extended by the DfT, following
representations from HAL, until 31 August 2015), in order to facilitate fair and
non-discriminatory acces s to the Heathrow Rail Infrastructure by all users of
that infrastructure. HAL published drafts of the HAL Network Statement and
HAL Network Code, together with drafts of a HAL Track Acces s Agreement,
HAL Station Access Conditions and HAL Station Access Agreement (including
station-specific Annexes) (the "H AL Access Documentation") on 01 July
2015, purportedly in compliance with the Deed of Undertaking.
5 HAL undertook a consultation in relation to the HAL Access Doc umentation
during July 2015. The Crossrail Sponsors were concerned that the one month
allowed by HAL was insufficient for a proper, full and reas onable cons ultation.
Nevertheless, the Crossrail Sponsors separately responded to that consultation
before the deadline and (in addition to TfL's com ments on the charging
framework proposed by HAL) pointed to where the HAL Access Documentation
was not fit for purpose in a number of respects and would mean that a railway
undertaking could not contract with HAL for access to the Heathrow Rail
Infrastructure on a fair and reasonable basis2.
6 HAL has stated that it had c onsidered the consultation res ponses . However, it
then reissued, on 31 August 2015, part of the HAL Access Docum entation (the
HAL Network Statement and HAL Network Code) without having made any
changes whatsoever. In October 2015, HAL issued the remainder of the HAL
Access Doc umentation which, although minor amendments had been made,
remained substantively unchanged from the original drafts.
7 At this stage, HAL also issued a table purportedly responding to TfL's
comments arising from the consultation. In the vast majority of cases , HAL
rejected the c oncerns of the Crossrail Sponsors without giving any reason – or
in any event a satisfactory explanation – for doing so. Many of HAL's responses
suggested a lack of understanding of the complexities involved in providing
access to existing and prospective beneficiaries .
8 In an attempt to as sis t HAL, from mid-October 2015 until early December 2015,
the Crossrail Sponsors met on a weekly basis with HAL with a view to
developing the HAL Access Documentation to an acceptable and workable
form. It is worth noting that throughout this engagement HAL was not at any
stage prepared to discuss any issues relating to c harging for ac ces s to the
Heathrow Rail Infrastructure pending the ORR decis ion on the charging
2 TfL refers to its response to the subsequent ORR consultation on the charging framework for the Heathrow Spur. Th e
Appendix to the response to the ORR's consultation contains TfL's consultation response to HAL dated 31 July 2015.
http://orr.gov.uk/__data/assets/pdf_file/0012/21252/charging-fram ework-consultation-tfl.pdf .
Page 3 of 37
framework for use of that infrastruc ture – even though there are many aspec ts
of charging which could and should have been resolved in parallel3.
9 Ad-hoc tri-partite workshop sessions with Network Rail Infrastructure Lim ited
("NRIL") were also held during this period to clarify and docum ent the
operational arrangements relating to the Heathrow Rail Infrastructure and, in
particular, how it would operate alongside NRIL as infrastructure manager of
the adjoining Great Wes tern Main Line4. Other than meeting minutes and
revised versions of Parts B and D of the HAL Network Code (which are broadly
acceptable to TfL, subject to the resolution of certain issues on which TfL has
provided HAL with detailed comm ents), TfL has seen no other output from
those meetings and workshops.
10 HAL agreed to revise and reissue the HAL Access Docum entation in draft by
the end of December 2015, following the period of engagement with the
Crossrail Spons ors. This revised HAL Access Documentation was not received
as promised. The Cross rail Sponsors reminded HAL on a regular basis that
they were awaiting revised drafts of the HAL Access Docum entation and
emphasised the urgency. HAL did finally issue some revised documentation
(the HAL Network Code and HAL Network Statement only) on 10 March 2016.
Again, there was little substantive change and the legitimate and valid concerns
of the Crossrail Sponsors remain to be addres sed. On this date, HAL also
stated that it would no longer be engaging with the Crossrail Sponsors and that
it would not be considering any further changes to the HAL Access
Documentation.
11 In TfL's opinion, HAL has not been fully and properly c ommitted to a process of
engagement with the Crossrail Sponsors. HAL has been inadequately
resourc ed and the additional resource whic h it did eventually appoint was too
late and too limited.
Regulation 29 and Regulation 30 Applications
12 TfL has expressed its concerns to HAL at every stage of this proc ess . TfL
remains aggrieved – at HAL’s approach to the c omplex tas k of preparing the
HAL Access Documentation, the level of access charges (whic h have no
founding in law or economics) and the pos itions which it has adopted more
generally. In the absence of swift progress , it becomes increasingly likely that
3 Although there is an ongoing consultation by the ORR in respect of whether a so-called investment recovery charge can be
levied by HAL, there are numerous other issues that TfL has previously raised regarding charging and incentives more widely.
One example is the level proposed by HAL for its Common Cost Charge and the overall structure of access charges.
Additionally, TfL has sought further dialogue with HAL regarding the performance regime it proposes to implement, but to date,
apart from a presentation on freight performance on the NRIL network, HAL has been unwilling to engage with TfL on this issue.
TfL understands from NRIL that HAL has recently prepared fresh proposals for a performance regime (please see Appendix 1
for more on this).
4 In particular, workshops were held in relation to the performance monitoring system, performance and timetabling (in
particular, Parts B and D of the HAL/NRIL Network Codes and Schedule 8 of the track access agreement).
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