Railways Act 1993

17 Access agreements: directions requiring facility owners to enter into contracts for the use of their railway facilities. E+W+S

(1) The Regulator may, on the application of any person, give directions to a facility owner requiring him to enter into an access contract with the applicant for the purpose specified in subsection (2) below; but no such directions shall be given if and to the extent that—

(a) the facility owner’s railway facility is, by virtue of section 20 below, an exempt facility;

(b) performance of the access contract, if entered into, would necessarily involve the facility owner in being in breach of an access agreement or an international railway access contract; F1 . . .

(c) as a result of an obligation or duty owed by the facility owner which arose before the coming into force of this section, the consent of some other person is required by the facility owner before he may enter into the access contract; [F2 or]

[F3 (d) the permission to use a railway facility to which the application relates could be applied for under subordinate legislation made for the purpose of implementing Council Directive 95/19/EC on the allocation of railway infrastructure capacity and the charging of infrastructure fees.]

(2) The purpose for which directions may be given is that of enabling the beneficiary to obtain (whether for himself alone or for himself and, so far as may be applicable, associates of his)—

(a) from a facility owner whose railway facility is track, permission to use that track for the purpose of the operation of trains on that track by the beneficiary;

(b) from a facility owner whose railway facility is a station, permission to use that station for or in connection with the operation of trains by the beneficiary;

(c) from a facility owner whose railway facility is a light maintenance depot, permission to use that light maintenance depot for the purpose of obtaining light maintenance services for or in connection with the operation of trains by the beneficiary, whether the facility owner is to provide those services himself or to secure their provision by another;

(d) from any facility owner, permission to use the facility owner’s railway facility for the purpose of stabling, or otherwise temporarily holding, rolling stock in connection with the operation of trains on any track by the beneficiary; or

(e) from any facility owner, permission to use the facility owner’s railway facility for or in connection with the operation of a network, station or light maintenance depot by the beneficiary;

but this subsection is subject to the limitations imposed by subsection (3) below.

(3) In subsection (2) above—

(a) paragraph (a) does not extend to obtaining permission to use track for the purpose of providing network services on that track;

(b) paragraph (b) does not extend to obtaining permission to use a station for the purpose of operating that station;

(c) paragraph (c) does not extend to obtaining permission to use a light maintenance depot for the purpose of enabling the beneficiary to carry out light maintenance;

(d) if and to the extent that the railway facility mentioned in paragraph (e) is track, that paragraph does not extend to obtaining permission to use that track for the purpose—

(i) of providing network services on that track, or

(ii) of operating any network in which that track is comprised,

except where the purpose for which directions are sought is to enable the beneficiary to operate on behalf of the [F4 Authority] a network in which the track in question is comprised;

(e) if and to the extent that the railway facility mentioned in that paragraph is a station, that paragraph does not extend to obtaining permission to use that station for the purpose—

(i) of providing station services at that station, or

(ii) of operating that station,

except where the purpose for which directions are sought is to enable the beneficiary to operate the station on behalf of the [F4 Authority];

(f) if and to the extent that the railway facility mentioned in that paragraph is a light maintenance depot, that paragraph does not extend to obtaining permission to use that light maintenance depot for the purpose—

(i) of carrying out light maintenance at that light maintenance depot, or

(ii) of operating that light maintenance depot,

except where the purpose for which directions are sought is to enable the beneficiary to operate the light maintenance depot on behalf of the [F4 Authority].

(4) Any reference in this section to a person operating a network, station or light maintenance depot “on behalf of the [F4 Authority]” is a reference to his operating the network, station or light maintenance depot in pursuance of any agreement or other arrangements made by the [F4 Authority] for the purpose of performing a duty imposed upon [F4 the Authority], or exercising a power conferred upon [F4 the Authority], under or by virtue of this Part to secure the operation of that network, station or light maintenance depot.

(5) Nothing in this section authorises the Regulator to give directions to any person requiring him to grant a lease of the whole or any part of a railway facility.

(6) In this Part—

• “access contract” means—

  (a)

  a contract under which—

  (i)

  a person (whether or not the applicant), and

  (ii)

  so far as may be appropriate, any associate of that person,

obtains permission from a facility owner to use the facility owner’s railway facility; or

(b) a contract conferring an option, whether exercisable by the applicant or some other person, to require a facility owner to secure that—

(i) a person (whether or not the applicant or that other), and

(ii) so far as may be appropriate, any associate of that person,

obtains permission from the facility owner to use his railway facility;

• and any reference to an “access option” is a reference to an option falling within paragraph (b) above;

• “facility owner” means any person—

  (a)

  who has an estate or interest in, or right over, a railway facility; and

  (b)

  whose permission to use that railway facility is needed by another before that other may use it;

• [F5 but also includes a person before he becomes a facility owner;]

• and any reference to a facility owner’s railway facility is a reference to the railway facility by reference to which he is a facility owner.

(7) In this section—

• “the applicant” means the person making the application for directions;

• “associate”, in relation to any person, includes—

  (a)

  any servant, agent or independent contractor of his;

  (b)

  any passenger of his;

  (c)

  any person engaged in the provision of goods or services to or for him; and

  (d)

  any other person who deals or has business with him;

• “the beneficiary” means the person mentioned in paragraph (a)(i) or, as the case may be, paragraph (b)(i) of the definition of “access contract” in subsection (6) above, according to the description of access contract in question;

• “directions” means directions under this section;

[F6 'the Directives’ mean Council Directive No. 91/440/EEC on the development of the Community’s railways and Council Directive No. 95/19/EC on the allocation of railway infrastructure capacity and the charging of infrastructure fees;]

• “implementing regulation” means a provision contained in subordinate legislation made for the purpose of implementing [F7 the Directives];

• “international railway access contract” means an access contract entered into as a result of—

  (a)

  an application made under an implementing regulation by an international grouping to an [F8 allocation body] for access and transit rights, or for transit rights, for the provision of international services between the member States where the undertakings constituting the international grouping are established; or

  (b)

  an application made under an implementing regulation by a railway undertaking established, or to be established, in a member State F9 . . . to an [F8 allocation body] for the grant of access for the purpose of the operation of international combined transport goods services;

  and expressions used in paragraph (a) or (b) above and in [F10 the Directives] have the same meaning in that paragraph as they have in [F10 the Directives];

• “lease” includes an underlease or sublease and an agreement for a lease, underlease or sublease.

[F11 (7A) Any reference in this section to obtaining permission to use a railway facility includes, where the facility is track, permission to connect other track to it.]

(8) Any reference in this section to obtaining permission to use a railway facility includes—

(a) a reference to obtaining, in connection with any such permission, power to obtain the provision of ancillary services relating to that railway facility, whether the facility owner in question is to provide those services himself or to secure their provision by another; and

(b) a reference to obtaining permission—

(i) to enter upon the facility land, with or without vehicles,

(ii) to bring things on to that land and keep them there,

(iii) to carry out works on that land, and

(iv) to use and maintain any things kept, or buildings or other works constructed, on that land (whether by the beneficiary or another) or any amenities situated on that land,

• “facility land” meaning in this paragraph the land which constitutes the railway facility in question;

and, in subsection (2)(c) above, the reference to obtaining permission to use a light maintenance depot includes a reference to obtaining power to obtain light maintenance services at that light maintenance depot, whether the facility owner is to provide those services himself or to secure their provision by another.

(9) Any reference in this section to a railway facility includes a reference to a part of a railway facility.

(10) Schedule 4 to this Act shall have effect with respect to applications for directions.

F12 (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1 Word in s. 17(1)(b) deleted (27.6.1998) by virtue of S.I. 1998/1340, reg. 21(5)

F2 Word in s. 17(1)(c) inserted (27.6.1998) by S.I. 1998/1340, reg. 21(5)

F3 S. 17(1)(d) inserted (27.6.1998) by S.I. 1998/1340, reg. 21(5)

F4 Words in s. 17(3)(4) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 11(2)(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)(which S.I. was amended by S.I. 2001/115, art. 2(2))

F5 S. 17(6): words in definition of

“facility owner”

inserted (1.2.2001) by 2000 c. 38, s. 233(1); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F6 Definition of “the Directives" in s. 17(7) substituted (27.6.1998) by S.I. 1998/1340, reg. 21(6)

F7 Words in definition of “implementing regulation" in s. 17(7) substituted (27.6.1998) by S.I. 1998/1340, reg. 21(7)

F8 Words in definition of “international railway access contract" in s. 17(7) substituted (27.6.1998) by S.I. 1998/1340, reg. 21(8)(b)

F9 Words in definition of “international railway access contract" deleted (27.6.1998) by virtue of S.I. 1998/1340, reg. 21(8)(c)

F10 Words in definition of “international railway access contract" in s. 17(7) substituted (27.6.1998) by S.I. 1998/1340, reg. 21(8)(a)

F11 S. 17(7A) inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 21; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F12 S. 17(11) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C1 S. 17 excluded (2.4.1994) by S.I. 1994/606, art. 5(1)(2)(3)(a)(b)(4)(5)(6)(a)(b)

C2 S. 17(1) restricted (18.12.1996) by 1996 c. 61, s. 17(1)