HAL’s comments on TfL’s consultation response (TfL commentary)

SectionTransport for London appeal under regulation 29 and complaint under regulation 30 of the Railways Infrastructure (Access and Management) Regulations
Strictly Private and Confidential
HAL 2nd iteration Responses to TFL Consultation November 30th 2015
TfL notes that unless otherwise specifically stated, the points raised in its initial consultation response have not been adequately addressed by HAL and
therefore TfL remains aggrieved by the position adopted by HAL.
TfL Comments
HAL initial response and
associated amendments
HAL Response November
TfL response January 2016
1.5 "The deficiencies are fundamental,
and encompass not only the procedure
which HAL has adopted (which is both in
breach of the Deed of Undertaking, and
on any view allows insufficient time for a
fair consultation), but more critically
reveal a basic misapprehension by HAL
as to its obligations and duties at law.
The result is an incomplete set of
documents which fail to get anywhere
close to a satisfactory, or legally
compliant, basis for provision of access
to the Heathrow Rail Infrastructure; and
a proposed charging regime which fails
to grapple with complex regulatory,
economic and legal issues."
TfL's comments have not yet
been addressed by HAL and
therefore remain.
1.6 "TfL is committed to ensuring that
these deficiencies are corrected: it has
invited HAL to agree to extend the
consultation process in order to work
with HAL (along with other interested
parties, specifically the DfT, MTR
Crossrail, Network Rail, the Mayor,
HEOC, the ORR and the CAA) to arrive at
Strictly Private and Confidential
a satisfactory and legally compliant
proposal. HAL has rejected that offer."
The Deed of
2.1 HAL has been subject to the Rail
Regulations 2005 since they were
promulgated in November 2005. It
should therefore already have in place
(among other things) a separation
between infrastructure manager and
operator, a Network Statement, and a
charging framework. HAL’s assertion that
it agreed to be bound by the Rail
Regulations only by virtue of the Deed of
Undertaking is wrong: HAL cannot agree
whether or not to be bound by the law.
A schedule was agreed
with the DfT and the
ORR and has been
No further response -
TfL does not consider this to be
closed. It is not correct to say
that the only reason it is bound
by the Rail Regulations is due to
the Deed of Undertaking. HAL
cannot agree contractually
whether or not to comply with
In any event, on its
understanding of the Deed of
Undertaking, TfL does not
believe that the schedule has
been completed.
Despite requests from Sponsors,
HAL has refused to provide
assurance either: (i) that the
separation requirements have
been implemented; or (ii) that
the ORR is comfortable with
HAL’s structure.
2.2 “The current unsatisfactory state of
affairs arises because of HAL’s disregard
for those obligations, but also because of
its breach of the terms of the Deed of
Undertaking which envisages a two stage
Refer to letter;
From Simon Earls to
Howard Smith 23rd July
2015 & 31st July 2015
reference: Heathrow
No further response -
TfL does not consider this to be
TfL considers that HAL has not
satisfied the requirements of
Strictly Private and Confidential
consultation process, such that the draft
Network Statement would be provided
to the ORR for comment, and the ORR
would “confirm” the charging framework
and specific charging rules some 11
months before the “Implementation
Date” (currently 31 August 2015,
pursuant to the Deed of Amendment).
This two stage process recognises the
complexity of the issues and the need for
early and proper consultation. HAL has
simply ignored the law and its
undertakings and has failed to engage in
the process in a meaningful or
constructive way. The result is, not to
put too fine a point on it, a mess.”
Airport Limited (HAL)
Moving to a regulated
railway consultation
the Deed of Undertaking for the
reasons set out in its original
consultation response.
3.1 “HAL’s proposals, in so far as it is
possible to understand them, appear to
result in the CAA exercising a regulatory
jurisdiction in respect of access charging
for the Heathrow Infrastructure, in
particular since the infrastructure is
intended to remain on the Airport RAB,
with the remuneration of capital
investment and recovery of on-going
operating costs to be established by the
CAA as part of the airport “periodic
review” process.”
ORR is the regulatory
body with respect to rail
No further response -
TfL does not consider this to be
HAL has not explained the
interaction between the
responsibilities of the CAA in
setting charges for the airport
and the responsibilities of the
ORR in setting charges for rail
infrastructure. In particular,
whether the CAA’s decision
could impact on the rate of
return for the railway. In the
context of stations discussions,

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