Freightliner's representations
| Section | Regulation 29 appeal by DBS for access and services at Freightliner Southampton Maritime Terminal |
RailInvest Funding Limited (a company registered in the Cayman Islands) is the ultimate parent company and controlling entity of RailInvest Holding Company Limited
RailInvest Holding Company Limited (Reg. No. 06522978) is the UK parent company and controlling entity of RailInvest Acquisitions Limited
(Reg. No. 06522985), Freightliner Group Limited (Reg. No. 05313119), Freightliner 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 Freightliner Railports Limited (Reg. No. 05928006).
Registered in England and Wales, Registered Office of all nine UK companies: 3rd Floor, The Podium, 1 Eversholt Street, London, NW1 2FL.
Dear Bill
Appeal under Regulation 29 of The Railways Infrastructure (Access and Mana gement)
Regulations 2005 for access and services at Southampton Maritime Freightliner Termina l
Thank you for your letter dated 14th January 2015 advising Freightliner Limited ( FL) of an appeal for
access and services at Southampton Maritime Freightliner Terminal (“Maritime”) under regulation 29
of The Railways Infrastructure (Access and Management) Regulations 2005 (‘the Regulati ons”) from
DB Schenker (“DBS”). This letter and its attachments constitute FL’s writte n representations in
respect of that appeal.
Freightliner notes that this letter and the supporting documentation (i.e. Appendices 1 – 7) contain
a significant volume of confidential and business sensitive information, the publication of which
would “seriously and prejudicially affect the interests” of F reightliner, as envisaged by Section
71(2)(b) of the Railways Act 1993. Freightliner notes that, under Section 71 of the Railways Act
1993, the O RR is under an obligation to have regard to any such info rmation when considering
whether publication is appropriate.
Should the ORR wish to publicise or consult further on any of the informatio n included i n this
response, Freightliner would be willing to provide the ORR with a non-confidential v ersion, together
with appropriate justifications a s to why it considers the information to fall within the category of
considers that the provision of this r esponse or any of the related doc umentation to DBS (which may
also raise concerns from a competition law perspectiv e), would “seriously and prejudicially affect
the interests” of Freightliner and should only be done by way of a non -confidential version.
Yours sincerely
Lindsay Durham
Head of Rail Strategy
Freightliner Group Limited
Bill Hammill
Manager, Track Access
Office of Rail Regulation
One Kemble Street
London
WC2B 4AN
4th February 2015
Freightliner Group Limited
3rd Floor, The Podium
1 Eversholt Street
London NW1 2FL
Tel:
Fax:
Email:
Web: www.freightliner.co.uk
Page 2 of 17
RESPONSE TO APPEAL
SUMMARY
Freightliner has considered DBS’s request for access to its Maritime termina l at Southampton.
Freightliner is unable to provide access to DBS a s requested because of the non -availability of
capacity at this terminal. Freightliner has nevertheless offered DBS access to i ts Millbrook site for 1
service. Notwithstanding this absence of capacity at the Maritime site. DBS has in a ny event been
unable to show that “viable alternative means of the service being pro vided under market
conditions do not exist,” as set out in regulatio n 29(6)(b) of the Access and Manag ement Regulations
2005 (the “Regulations”).
Freightliner sets out below why a “viable alternative” in current “market conditions,” as described
in the ORR’s Guidance on Appeals to ORR un der the Railways Infrastructure (Access and
Management) Regulations 2005 (the “Guidance”), does in fact exist. Freightli ner then goes on to
explain why it is unable in any event to provide access to its Maritime terminal because of the
absence of any available capacity, forcing Freightliner itself to run trains out of its Millbrook
terminal.
As well a s responding to the specific arguments raised by DBS in its appeal and related
documentation, Freightliner has considered carefully the Guidance and sets out below a fully
reasoned and objectively justified set of considerations informing its final decision to deny DBS
access. Freightliner notes that the ORR will, if possible, rely solely on the information provided by
DBS and Freightliner for the purposes of its determination. In response to DBS’s appeal and its
commissioned 'capacity evaluation' report, based on historic publical ly available information,
Freightliner has sought to provide the ORR with sufficient “realistic information”
1
to allow it to
reach a firm conclusion on the relevant issues.
COMMERCIALLY VIABLE ALTERNATIVE
FL contends that the DBS site in 109 berth, Herbert Walker Aven ue, Western Docks, Southampton is
a commercially viable alternative to the FL Maritime terminal for the following reasons:
FL understands that DBS have been running services at this faci lity since 2006, and started
doing so under the previous ownership, English, Welsh and Scottish Railways (“EWS” ), from
2000.
FL understands that DBS have consistently been running between 3 and 6 service s a day out
of the Western Docks Terminal and have run up to 8 daily services
It would therefore appear that DBS is alleging that the site has sudde nly become
uneconomical after about 15 years of successful operation.
FL’s customers regularly advise us that rates quoted by DBS are the cheape st in the market.
The site was improved by ABP in 2006. During that work, FL provided a ccess to DBS at the
Maritime terminal. Post completion of those works, the service returned to the Western
Docks Terminal.
Until the approach in February 2014, there have been no further requ ests from DBS since
2006 for access to either of Freightliner’s sites.
There is another alternative commercially viable site at Millbrook and access has already
been offered by Freightliner for one train.
Commercial Viability
Freightliner does not believe that the costs of operating at Western Docks Terminal are
fundamentally different to the costs of Maritime Terminal. As far as FL is aware DBS has not
supported its appeal with any information about the difference in cost in op erating the Western
Docks Terminal versus their perceived cost of access into Maritime Terminal . It also appears that
1
The Guidance, paragraph 4.12.
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