ORR Determination under Regulation 32 – 20 January 2022
| Date | Fecha inválida |
| Section | Appeals under The Access and Management Regulations |
Appeal to ORR on Access
Disputes Committee Timetabling
Panel Determination HAL/TTP003
ORR determination
20 January 2022
1
Contents
Executive Summary 2
Background 3
Relevant Provisions of the HAL Network Code and The Railways (Access,
Management and Licensing of Railway Undertakings) Regulations 2016 3
ORR’s Legal Power to Hear the Appeal 5
HEOC’s Notice of Appeal 7
MTR’s Response to the HEOC Appeal 8
HAL’s Representations 11
MTR’s Response to HAL’s Representations 12
ORR’s Consideration of the Appeal 14
ORR’s Conclusions and Determination 26
Annex 1 – Condition D4.6 HAL Network Code 28
Annex 2 - Chronology 29
2
Executive Summary
1. This determination by the Office of Rail and Road (“ORR”) concerns an appeal
(received 5 November 2021) pursuant to Part M of the Heathrow Airport Limited
(“HAL”) Network Code against the determination of the Timetabling Panel of the
Access Disputes Committee (“the Panel”), dated 27 October 2021 (“the
Determination”). The Determination considered dispute HAL/TTP003, raised by MTR
Corporation (Crossrail) Limited (“MTR”).
2. ORR has determined this appeal pursuant to its powers under Regulation 32 of the
Railways (Access, Management and Licensing of Railways Undertakings)
Regulations (2016) (the “Regulations”), and in accordance with the provisions set out
in Parts D and M of the HAL Network Code.
3. Condition M7.1.1 of the HAL Network Code provides that every appeal will be limited
to a review of the decision of the lower tribunal unless ORR considers that in the
circumstances of an individual appeal it would be in the interests of justice to hold a
re-hearing. Based on the circumstances of this case, ORR has not considered it
would be in the interests of justice to conduct a re-hearing and therefore this
determination is limited to a review of the decision of the Panel.
4. On balance, ORR considers that the Panel’s conclusion that HAL had insufficient
information to make the decision that it did was reasonable. HAL dismissed potential
alternatives too readily and did not do enough to endeavour to find an acceptable
solution that was consistent with all Exercised Firm Rights1. ORR therefore upholds
the Panel’s decision that HAL’s decision should be set aside on this basis. However,
ORR considers that in substituting its own decision, the Panel produced a
determination which suffers from the same weakness as that of HAL, i.e., that it was
made in the face of a “paucity of available data” (Paragraph 182 of the
Determination). In short, the Panel was not in a position to make a substituted
decision. Therefore, ORR determines that this part of the Panel’s decision should be
set aside. Instead, ORR remits the decision to HAL to be re-taken in accordance with
the findings in this determination, in particular the need to obtain further information.
1 This term is defined in Part D of the HAL Network Code.
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