ORR determination
| Date | Fecha inválida |
| Section | DBS Regulation 29 appeal regarding access to the Port of Felixstowe |
THE OFFICE OF RAIL REGULATION’S DECISION ON AN APPEAL BY DB
SCHENKER UNDER REGULATION 29 OF THE RAILWAYS
INFRASTRUCTURE (ACCESS AND MANAGEMENT) REGULATIONS 2005
REGARDING ACCESS TO THE PORT OF FELIXSTOWE WHERE
FELIXSTOWE DOCK AND RAILWAY COMPANY IS THE SERVICE
PROVIDER
DECISION: The Office of Rail Regulation decides this appeal as set out in
paragraphs 120 and following. A summary of our decision is set out at
paragraphs 5 to 7.
Introduction
1. This is the decision of the Office of Rail Regulation (“ORR”) regarding
an appeal made by DB Schenker Rail (UK) Limited (“DBS”) on 22
January 20101 under Regulation 29 of the Railways Infrastructure
(Access and Management) Regulations 2005 (the “Regulations”)2. The
appeal concerns FDRC’s treatment of a request for access to the port
by DBS, and how FDRC calculates charges for its services provided to
rail freight operators using the port.
2. In this decision, words and definitions have the same meaning as
under the Regulations unless the context requires otherwise.
3. The Port of Felixstowe is operated by the Felixstowe Dock and Railway
Company (“FDRC”), and owned by Hutchison Ports (UK) Limited3. The
port is the largest container port in the UK (and one of the largest in
Europe). FDRC grants access and provides lifting and handling
services to rail freight operating companies at the port. FDRC does not
operate any rail freight services itself.
4. DBS is one of the three rail freight operating companies (“FOCs”)
which operate services out of the port, together with Freightliner
Limited (“Freightliner”) and GB Railfreight Limited (“GBRf”).
1 E-mail appeal application from DBS to ORR dated 22 January 2010, Appeal
Application.pdf Proposed Facility Access Contract.pdf. A full set of correspondence
exchanged in this appeal (save for confidential correspondence) is located at
http://www.rail-reg.gov.uk/server/show/nav.2398
2 Railways Infrastructure (Access and Management) Regulations 2005
http://www.opsi.gov.uk/si/si2005/20053049.htm
3 Although it is Hutchison’s letterhead on the port’s correspondence, we refer to the port as
FDRC for the purposes of this determination.
Doc # 399871.03
Summary
5. This section sets out a brief summary of the issues DBS has asked us
to determine, and our conclusions. All of these issues, together with the
facts giving rise to DBS’s appeal, are set out in detail in the remainder
of this determination.
6. In relation to the capacity part of DBS’s appeal, the issues and our
determinations are as follows:
(a) DBS asked us to determine whether there is sufficient capacity
for the 29th service at the specific times it has identified. We
have determined that there is not. The paths on the branch line
identified by DBS to serve its 29th slot in the port are occupied
by Freightliner’s services, and within the port we are of the
view that the slot DBS seeks would not be available without
changes to Freightliner’s operations4. We shall not direct that
FDRC must award the 29th slot to DBS.
(b) DBS asked us to “appropriately direct the port with regard to its
conduct vis-à-vis future capacity allocation”. We consider that
this requires us to determine whether both the manner in
which the new allocation rules were introduced by the port in
May 2009 and the content of those rules meet regulation 6(3)
requirements.
We have determined that the manner in which the new
allocation rules were introduced lacked transparency, and
favoured Freightliner. We consider that, as a matter of good
practice, a service provider should include an appropriate
period of consultation with its FOC users when making a
material change to its existing allocation criteria. Nonetheless,
we are satisfied that the new rules themselves comply with
regulation 6(3) requirements in circumstances where there is
otherwise no available capacity.
We therefore do not consider that we should make any
directions in relation to the arrangements now in place
between Freightliner and FDRC for the 28th slot.
(c) DBS asked us to direct that its existing two contracts with
FDRC, and any new access contract we might determine is
required, should be amended in favour of the template
preferred by DBS, rather than using FDRC’s template terms.
We have not identified any need for such a direction, and
accordingly decline to make one.
4 As explained in more detail in paragraph 50 below, we use the term “path” when referring
to capacity on the branch line, and “slot” for capacity within the rail terminals at the port.
Doc # 399871.03
To continue reading
Request your trial