The Railways (Access, Management and Licensing of Railway Undertakings) Regulations 2016

PART 4 E+W+S Infrastructure Charges

Establishing, determining and collecting charges E+W+S

14.—(1) Subject to paragraph (3), the Office of Rail and Road must establish the charging framework and the specific charging rules governing the determination of the fees to be charged in accordance with paragraphs (6) and (7).

(2) Subject to paragraphs (3) and (9), the infrastructure manager must—

(a) determine the fees to be charged for use of the railway infrastructure in accordance with the charging framework, the specific charging rules, and the principles and exceptions set out in Schedule 3; and

(b) collect those fees.

(3) Paragraphs (1) and (2) do not apply where the railway infrastructure to which the charge relates is a rail link facility or is part of the tunnel system.

(4) Where paragraph (3) applies because the railway infrastructure to which the charge relates is a rail link facility, the Secretary of State must establish the charging framework through the development agreement, and the infrastructure manager must, subject to paragraph (9)—

(a) establish the specific charging rules governing the determination of the fees to be charged in accordance with paragraph (6);

(b) determine the fees to be charged for the use of the railway infrastructure in accordance with the charging framework, the specific charging rules and the principles and exceptions set out in Schedule 3; and

(c) collect those fees.

(5) Where paragraph (3) applies because the railway infrastructure to which the charge relates is part of the tunnel system the infrastructure manager must, subject to paragraph (9)—

(a) establish the specific charging rules in accordance with Article 2 of the Channel Tunnel charging framework;

(b) determine the fees to be charged for use of the infrastructure in accordance with the Channel Tunnel charging framework, the specific charging rules and the principles and exceptions set out in Schedule 3; and

(c) collect those fees.

(6) Subject to the provisions in paragraphs (1) to (5), the infrastructure manager must—

(a) charge fees for use of the railway infrastructure for which the infrastructure manager is responsible; and

(b) utilise such fees as are received to fund the infrastructure manager's business.

(7) A service provider must—

(a) charge fees for the use of a service facility for which the service provider is responsible; and

(b) utilise such fees as are received to fund the service provider's business.

(8) Applicants must, subject to the right of appeal to the Office of Rail and Road provided in regulation 32, pay such fees as are charged by the infrastructure manager or service provider under paragraphs (6) and (7) for use of the railway infrastructure or service facility.

(9) Subject to paragraph (10), if the infrastructure manager in its legal form, organisation or decision-making functions, is not independent of any railway undertaking, the infrastructure manager must ensure that the functions referred to in this Part and Schedule 3 are performed by a charging body that is independent in its legal form, organisation and decision-making from any railway undertaking.

(10) The separation required by paragraph (9) does not apply to the function of the collection of fees charged in accordance with paragraph (2)(b), (4)(c), and (5)(c).

(11) The infrastructure manager or service provider must be able to demonstrate to each railway undertaking that any fees invoiced to it under paragraphs (6) or (7) comply with the methodology, rules and, where applicable, scales laid down in the network statement.

(12) Subject to paragraph (13), where information about such fees is necessary for the Office of Rail and Road to carry out its functions under regulations 31, 32, 34 and 35 and Schedule 5 and is requested by the Office of Rail and Road, the infrastructure manager or service provider must supply the information requested.

(13) The infrastructure manager must respect the commercial confidentiality of information provided to it by applicants for infrastructure capacity.

Infrastructure costs and accounts E+W+S

15.—(1) Subject to section 2 of the Channel Tunnel Act 1987 M1 , the authorities designated by paragraphs (2) to (4) must, in the case of the railway infrastructure in relation to which they are designated by those paragraphs, ensure, in the way set out in the relevant paragraph, that, under normal business conditions and over a reasonable time period which must not exceed five years, the accounts of an infrastructure manager at least balance—

(a) income from railway infrastructure charges;

(b) surpluses from other commercial activities;

(c) non-refundable incomes from private sources; and

(d) state funding, including, where appropriate, advance payments from the state,

with railway infrastructure expenditure.

(2) For the purposes of paragraph (1), the Office of Rail and Road is designated in relation to railway infrastructure subject to an access charges review, and must discharge its obligations under that paragraph through that review.

(3) For the purposes of paragraph (1), the Secretary of State is designated in relation to a rail link facility, and must discharge obligations under that paragraph through the development agreement.

(4) For the purposes of paragraph (1), the Office of Rail and Road is designated in relation to railway infrastructure that is not covered by paragraphs (2) or (3) and has, in order to discharge its obligations under that paragraph, the power to issue such directions limiting, to any extent necessary, an infrastructure manager's ability to finance infrastructure expenditure out of borrowed funds.

(5) Without prejudice to the right of any person to make an application to the court under Part 54 of the Civil Procedure Rules 1998 M2 , it is the duty of any person to whom a direction is given under paragraph (4) to comply with and give effect to that direction.

(6) The infrastructure manager must enter into an agreement with the Secretary of State or, in the case of the tunnel system, British Railways Board M3 , which must fulfil the basic parameters of Annex V of the Directive, and cover a period of not less than five years.

(7) The Office of Rail and Road must, with due regard to safety and to maintaining and improving the quality of the infrastructure service, provide infrastructure managers with incentives to reduce the costs of provision of railway infrastructure and the level of access charges.

(8) The Office of Rail and Road must—

(a) in the case of a rail link facility, exercise its rights and responsibilities under or by virtue of the relevant development agreement; and

(b) in any other case, exercise its functions under the Act,

in order to ensure that the requirements set out in paragraph (7) are complied with.

(9) In fulfilling its obligations under paragraph (8), the Office of Rail and Road must base its decisions on an analysis of the achievable cost reductions.

(10) The infrastructure manager must develop and maintain a register of its assets and the assets it is responsible for managing insofar as this information is required to assess any funding needed to repair or replace such assets.

(11) The register referred to in paragraph (10) must be accompanied by details of expenditure on renewal and upgrading of the railway infrastructure.

(12) The infrastructure manager must establish a method for apportioning costs to the different categories of services offered to railway undertakings, which must be updated from time to time on the basis of best international practice.

(13) Where required by the Office of Rail and Road, the infrastructure manager must seek prior approval for the method for apportioning costs referred to in paragraph (12).

Marginal Citations

M1 1987 c. 53.

M2 S.I. 1998/3132. Part 54 is amended by the Constitutional Reform Act 2005 (c. 4), Schedule 11, Part 1, paragraph 1(2); S.I. 2000/2092, Schedule; S.I. 2002/2058, rule 21; S.I. 2003/364, rule 5(a)-(e); S.I. 2003/3361, rules 12 and 13; S.I. 2007/3543, rule 7(b) and (c); S.I. 2009/3390, rule 29(b); S.I. 2010/2577, rules 3 and 4; S.I. 2012/2208, rules 2 and 9(b) and (c); S.I. 2013/262, rule 18; S.I. 2013/1412, rule 4; S.I. 2015/102, Schedule 6, Part 2, paragraph 11; and S.I. 2015/670, rules 4, 7, 9 and 10. There are other amendments to Part 54 which are not relevant to these Regulations.

M3 The British Railways Board was established by section 1 of the Transport Act 1962 (c. 46). This provision is to be repealed by the Transport Act 2000 (c. 38), Schedule 31, Part 4 on a date to be appointed.

Performance scheme E+W+S

16.—(1) The infrastructure manager must establish a performance scheme as part of the charging system to encourage railway undertakings and the infrastructure manager to minimise disruption and improve the performance of the network.

(2) The performance scheme referred to in paragraph (1) may include—

(a) penalties for actions which disrupt the operation of the network;

(b) compensation for undertakings which suffer from disruption; and

(c) bonuses that reward better than planned performance.

(3) The performance scheme referred to in paragraph (1) must be based on the basic principles listed in paragraph 7 of Schedule 3 and must apply in a non-discriminatory manner throughout the network to which that scheme relates.

(4) The infrastructure manager must, as soon as possible, communicate to the railway undertaking a calculation of payments due under the performance scheme.

(5) A calculation under paragraph (4) must encompass all delayed train runs within a period of at most one month.

(6) Without prejudice to existing appeal procedures and to the right of appeal under regulation 32, in the case of disputes relating to the performance scheme, a dispute resolution system must be made available in order to settle such matters promptly.

(7) The dispute resolution system described in paragraph (6) must be impartial towards the parties involved and, if this system is applied, a decision must be reached within a time limit of 10 working days.

(8) Once a year, the infrastructure manager must publish the annual average level of performance achieved by the railway undertakings on the basis of the main parameters agreed in the performance scheme.

Reservation charges E+W+S

17.—(1) The infrastructure manager may levy an appropriate charge (“reservation charge”) for capacity that is requested but not used.

(2) Where the infrastructure manager makes provision for a reservation charge to be imposed, that charge—

(a) must provide incentives for efficient use of capacity; and

(b) is mandatory in the case of a regular failure by an applicant to use the paths, or part of the paths, allocated to them.

(3) Where provision for a reservation charge has been made—

(a) the infrastructure manager must publish in its network statement the criteria used to determine the failure to use allocated paths; and

(b) the Office of Rail and Road must control such criteria in accordance with regulations 32 and 34.

(4) The infrastructure manager must provide, at the request of any interested party, information about the infrastructure capacity allocated to applicants.

Cooperation in relation to charging systems on more than one network E+W+S

18.—(1) The infrastructure manager must cooperate with other infrastructure managers to enable the application of efficient charging schemes, and must associate with them to coordinate the charging or to charge for the operation of train services which cross more than one network of the rail system within the European Union.

(2) The infrastructure manager must, in particular, aim to guarantee the optimal competitiveness of international rail services and ensure the efficient use of the networks; to this end the infrastructure manager must cooperate with other infrastructure managers to establish appropriate procedures, subject to the rules set out in these Regulations.

(3) For the purpose of paragraphs (1) and (2) the infrastructure manager must cooperate with other infrastructure managers to enable mark-ups (as referred to in Schedule 3, paragraph 2) and performance schemes (as referred to in regulation 16) to be efficiently applied for traffic crossing more than one network of the rail system within the European Union.