Access Disputes Panel Paper
Reference ‘ADP 51’
NETWORK RAIL AND first gbRF joint reference to ADP51
in the matter of a reference to the ACCESS Disputes panel entitled ADP51
1details of parties
1.1The names and addresses of the parties to the reference are as follows:-
(a)Network Rail Infrastructure Ltd whose Registered Office is at King’s Place, 90 York Way, London, N1 9AG ("NR") (“the claimant”).
(b)GB Railfreight Limited whose Registered Office is at 15-25 Artillery Lane, LondonE1 7HA (“First GBRf”)
(c)Network Rail contact details :
Gordon Cox
Customer Relationship Executive
Network Rail
East Anglia House
12-34 Great Eastern Street
London
EC2A 3EH
Tel07825-258917
Fax020-7904-4418
(d)First GBRf contact details :
Steve Turner
Development & Performance Manager
First GBRf
15 – 25 Artillery Lane
London
E1 7HA
Tel07799 336636
Fax020 7983 5171
2The Parties’ right to bring this reference
2.1NR and First GBRf entered into a Track Access Contract (TAC) on the 29thJanuary 2008, which expires at the Principal Timetable Change Date in December 2016.
2.2This matter is referred to theAccess Disputes Panel ("the Panel") for determination in accordance with Clause 13 of the Track Access Contract.
3Contents of reference
The Parties have together produced this joint reference and it includes:-
(a)The subject matter of the dispute in Section 4;
(b)A summary of the issues in dispute in Section 5;
(c)A detailed explanation of the issues in dispute prepared by the claimant with a paragraph by paragraph response from First GBRf in Section 6;
(d)Any further issues raised by First GBRf in Section 7;
(e)The decisions of principle sought from the Panel in respect of legal entitlement and remedies in Section 8; and
(f)Appendices and other supporting material.
4subject matter of dispute
4.1This dispute arises from an application made by DB Schenker, under Condition J7 of the Network Code,seeking to transfer quantum access rights for the operation of services on behalf of its new customer, Royal Mail. The rights are presently held by First GBRf.
4.2NR has rejected the First GBRf Part J Counter Notice because they have failed to demonstrate a ‘reasonable on-going commercial need’.
5summary of dispute
5.1In December 2008, Royal Mail issued a tender for the provision of rail haulage between Willesden PRDC, Warrington RMT and Shieldmuir. (It should be noted that NR were not party to this tender and have not been sighted to its content)
5.2In October 2009, DB Schenker were notified by Royal Mail that they had been successful in the tender process for all services and they would start on 30thMay 2010.
5.3On 5th February 2010 DB Schenker issued a Part J letter to NR seeking transfer of the Royal Main access rights from First GBRf to DB Schenker
5.4NR in turn wrote on 8th February 2010 to First GBRf with a Part J application setting out the quantum access rights sought by DB Schenker (see Appendix 1)
5.5First GBRf responded in writing to NR on 15th February 2010 with a Part J counter notice advising that it could agree to the transfer of those rights identifiedin the Royal Mail tender but could not agree to transfer the rest of the rights in the same service group (see Appendix 2)
5.6NR responded to the First GBRf Part J counter notice on 18th February 2010acknowledging that whilst First GBRf had agreed to the transfer of certain access rights it had not provided a response in accordance with the Network Code Part J7.6.1.(b). (see Appendix 3)
5.7First GBRf does not agree to the transfer of all pathways requested by Network Rail to transfer.
5.8The pathways that First GBRf has agreed to transfer are those specified in the Tender document, which will allow DB Schenker to commence the operation of these services unhindered.
5.9First GBRf is still in ongoing negotiations with Royal Mail and has been seeking clarity from the customer concerning the remainder of services that operate.
5.10As of the 17th March 2010, Royal Mail confirmed that DB Schenker is only being contracted to work the services that were issued in the original tender documentation (see Appendix 4).
5.11First GBRf has agreed to surrender these pathways.
5.12Until the situation is clarified regarding the remainder of the train paths First GBRf believe has a ‘reasonable ongoing commercial need’ to retain these pathways.
5.13That said First GBRf acknowledges that when clarity is reached by Royal Mail in appointing an operator to work the services specified, then these will willingly be released.
6explanation of each issue in dispute with response
6.1Issue 1 by Claimant.
That the actions by First GBRf have not been consistent with regard to demonstrating ‘reasonable on-going commercial need’ to retain certain specified Royal Mail access rights and that these should all transfer to DB Schenker
6.2 First GBRf have agreed to release the access rights that have been awarded to DB Schenker. Until negotiations have been concluded with Royal Mail concerning the remainder of the services, First GBRf believes it has a ‘reasonable ongoing commercial need’ to retain the access rights.
7any further issues raised
7.1None.
8decision sought from the PANEL
8.1The Panel is asked to determine by Network Rail:
(a)That First GBRf should transfer all the quantum access rights to DB Schenker in Royal Mail service group 4603 as it has failed to justify retention of some of the access rights under the terms of the Network Code Part J.
8.2The Panel is asked to noteFirst GBRf’sview that:
(a)First GBRf should be able to retain the balance of the access rights in service group 4603.
9signatures
For and on behalf of First GBRfFor and on behalf of NR
SignedSigned
Print name: Steve TurnerPrint name: Gordon Cox
Position:Development & Position:Customer Relationship
Performance ManagerExecutive
Date:30thMarch 2010 Date:31stMarch 2010
AppendiX 1
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