MTR Corporation (Crossrail) Limited – further representations – 26 November 2021
| Date | 26 November 2021 |
| Section | Appeals under The Access and Management Regulations |
Page 1 of 2
MTR Corporation (Crossrail) Limited, trading as MTR Elizabeth line
63 St Mary Axe, London EC3A 8NH
mtrel.co.uk | Registered in England No. 08754715 | Subsidiary of MTR Corporation
James Osborn
Case Officer
Office of Rail and Road
Cc: Martin Jones
26 November 2021
Dear James
Appeals under Part M of the HAL Network Code by Heathrow Airport Limited
and Heathrow Express Operating Company Limited in respect of Timetabling
Panel Determination HAL/TTP003 (the Appeals)
ORR's letter of 19 November 2021 invites the parties to the Appeals to provide their
written representations on the following:
(i) ORR’s legal power to act as an appeal body in this dispute and under which
statutory provision(s);
(ii) Which party/parties have a right to appeal to ORR and under which statutory and/or
contractual provisions, including:
a. The inter-relationship between a party’s right to appeal under the contractual
provisions of the HAL Network Code and any statutory right to appeal
b. The inter-relationship between Parts D and M of the HAL Network Code with
respect to a party’s right to appeal.
ORR's legal power to act as an appeal body in its dispute and under which
statutory provision(s)
We struggle to see the statutory basis on which the ORR has the power to hear these
Appeals. As noted in our letter of 12 November 2021, we do not believe ORR has
sufficient vires to hear these Appeals on the basis that the Heathrow Infrastructure is
an exempt facility pursuant to section 3 of The Railways (Heathrow Express)
(Exemptions) Order 1994, which excludes the HAL network and oversight of access
to it from ORR's regulatory function. We also do not believe The Railways
Infrastructure (Access and Management) Regulations 2016 afford the ORR statutory
power in the current circumstances.
Which party/parties have a right to appeal to ORR and under which statutory
and/or contractual provisions, including:
The HAL Appeal
ORR has previously stated in April 2018 that it will be slow to accept a reference or
appeal in relation to the Heathrow Rail infrastructure where it does not also have
implications for the Network Rail mainline and/or wider industry relevance beyond the
Heathrow Rail Infrastructure. As observed in our letter of 12 November 2021, we
believe that the dispute between MTR and HAL is about access to Heathrow Terminal
5 for MTR services with Firm Contractual Rights under its track access agreement with
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