Freightliner Heavy Haul appeal to ORR
| Date | 13 January 2010 |
| Section | Freightliner Heavy Haul Limited Regulation 29 appeal regarding rolling stock charging |
Your Ref:
Paul McMahon
Our Ref:
Deputy Director Economics
Office of Rail Regulation
One Kemble Street
London
WC2B 4AN
13 January 2010
Freightliner Heavy Haul Limited
3rd Floor, The Podium
1 Eversholt Street
London NW1 2FL
Tel: +44 (0) 207 200 3912
Fax: +44 (0) 207 388 2592
Email: durhamL@Freightliner.co.uk
Web: www.freightliner.co.uk
Dear Paul
APPEAL UNDER REGULATION 29 OF THE
RAILWAYS INFRASTRUCTURE (ACCESS AND
MANAGEMENT) REGULATIONS 2005
This letter constitutes a letter of appeal by Freightliner Heavy Haul Limited (FHH) to the
Office of Rail Regulation (ORR) pursuant to regulation 29 of the Railways Infrastructure
(Access and Management) Regulations 2005 (‘the Regulations’).
FHH believes that the matter of this appeal is not one in relation to which directions can be
sought from ORR under sections 17 or 22A of the Act as it relates to the circumstances
specified in paragraph (4) of regulation 29.
FHH considers an appeal has become necessary as Network Rail have refused to engage with
FHH over a matter of incorrect charges being billed to FHH.
BASIS FOR APPEAL
FHH contends that Network Rail has raised incorrect charges in respect of the following
wagons for (variously – detailed below) the period 2002-2009: TEAP,TEAK,FEAE,FRAA.
FHH contends that the charges raised do not comply with paragraph 12. (9) of Part 4 of the
Railways Infrastructure (Access and Management) Regulations 2005. FHH believes that the
charges raised do not “comply with the methodology, rules and where applicable, scales
laid down in the network statement”.
FHH contends that the charges raised do not comply with paragraph 1(a) “complies with the
rules set out in the network statement produced in accordance with regulation 11” or
paragraph 1(b) “results in equivalent non-discriminatory charges for different railway
undertakings that perform services of an equivalent nature in a similar part of the market”
of Schedule 3 of the Railways Infrastructure (Access and Management) Regulations 2005.
FHH considers that Network Rail’s charges in respect of this dispute constitute a breach of
their Licence Condition section 9 – non-discrimination:
“9.1 Except in so far as ORR may otherwise consent, the licence holder shall not in its
licensed activities, or in carrying out any other function contemplated by this licence,
unduly discriminate between particular persons or between any classes or descriptions of
person.”
In addition FHH does not believe that Network Rail have acted in accordance with their
Licence condition 8.2 (a):
“8.2 The licence holder shall achieve the purpose in condition 8.1. In particular, the licence
holder shall, to the greatest extent reasonably practicable, deal with stakeholders:
RailInvest Holding Company (Reg. No. 06522978) is the ultimate parent company and controllin g entity of RailInvest Acquisitions Limited
(Reg. No. 06522985), Freightliner Group Limited (Reg. No. 05313119), Fr eightliner Acquisitions Limited (Reg. No. 05313136), Management Consortium
Bid Limited (Reg. No. 02957951), Freightliner Limited (Reg. No. 03118392), Freightliner Heavy Haul Limited (Reg. No. 3831229),
Freightliner Maintenance Limited (Reg. No. 05713164)and Freightlin er Railports Limited (Reg. No. 05928006).
Registered in England and Wales, Registered Office of all nine companies: 3rd Floor, The Podium, 1 Eversholt Street, London, NW1 2FL. Doc #
389884.01
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