Search Legislation

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

What Version

 Help about what version
  • Latest available (Revised)
  • Original (As made)

Status:

This is the original version (as it was originally made). This item of legislation is currently only available in its original format.

PART 5ALLOCATION OF INFRASTRUCTURE CAPACITY

Capacity allocation

19.—(1) Whilst respecting the requirements for management independence stipulated in regulation 8, the Office of Rail and Road may establish a framework for the allocation of infrastructure capacity.

(2) The infrastructure manager must, subject to paragraph (3), be responsible for the establishment of specific capacity allocation rules and for the process of allocating infrastructure capacity in respect of the infrastructure for which it has responsibility.

(3) If the infrastructure manager, in its legal form, organisation and decision making functions, is not independent of any railway undertaking, the infrastructure manager must ensure that the functions described in this Part and Schedule 3 are performed by an allocation body that is independent in its legal form, organisation and decision-making from any railway undertaking.

(4) Subject to paragraph (7), any applicant may apply to the infrastructure manager for the allocation of infrastructure capacity.

(5) In order to use such capacity, an applicant which is not a railway undertaking must appoint a railway undertaking to conclude a contract with the infrastructure manager in accordance with paragraph (14): this is without prejudice to the right of the applicant to conclude an agreement with the infrastructure manager under regulation 22(1).

(6) The infrastructure manager must ensure that the allocation process is conducted in accordance with the timetable set out in Schedule 3.

(7) Subject to paragraph (8), an applicant who has been granted capacity by the infrastructure manager, whether that capacity is in the form of—

(a)a framework agreement made in accordance with regulation 21 specifying the characteristics of the infrastructure granted; or

(b)specific infrastructure capacity in the form of a train path,

must not trade that capacity with another applicant or transfer it to another undertaking or service.

(8) Any person who trades in capacity contrary to the provisions of paragraph (6) shall not be entitled to apply for capacity under paragraph (4) for the period of the working timetable period to which the allocation of capacity transferred related.

(9) The use of capacity by a railway undertaking on behalf of an applicant who is not a railway undertaking, in order to further the business of that applicant, is not a transfer for the purpose of paragraph (6).

(10) The infrastructure manager must not allocate capacity in the form of specific train paths for any period in excess of one working timetable period.

(11) A contract, either in the form of a framework agreement or any other type of contract, setting out the rights and obligations of the parties, must be concluded between the infrastructure manager and any applicant to whom infrastructure capacity is allocated before that infrastructure capacity is utilised.

(12) The infrastructure manager must—

(a)ensure that infrastructure capacity is allocated on a fair and non-discriminatory basis;

(b)ensure that the agreements referred to in paragraph (10) are non-discriminatory, transparent, and in accordance with the requirements of these regulations; and

(c)respect the confidentiality of information supplied as part of the capacity allocation process, including the identity of other applicants during disclosure under regulation 23(5) unless the relevant applicant has agreed to disclosure of their identity. .

(13) In reserving infrastructure capacity for the purposes of scheduled track maintenance, as requested under regulation 22(3), the infrastructure manager must take into account the effect of that reservation on applicants.

(14) An applicant applying for infrastructure capacity with a view to operating an international passenger service must give notice of that fact to the infrastructure manager concerned and to the Office of Rail and Road and provide such information as the Office of Rail and Road may reasonably require or prescribe.

(15) When the Office of Rail and Road receives a notice from an applicant under paragraph (13) it must provide—

(a)any competent authority that has awarded a rail passenger service, defined in a relevant public service contract;

(b)any railway undertaking which is a relevant public service operator; and

(c)any other competent authority with a right to limit access along the route of the international passenger service notified under paragraph (7).

with a copy of the information in relation to that service provided to it in accordance with that paragraph.

(16) The infrastructure manager may set requirements with regard to applicants to ensure that its legitimate expectations about future revenues and utilisation of the infrastructure capacity are safeguarded.

(17) Requirements under paragraph (16)—

(a)Must be appropriate, transparent and non-discriminatory;

(b)Must be specified in the network statement; and

(c)May only include the provision of a financial guarantee by an applicant if the level of such guarantee does not exceed an appropriate level which is proportional to the contemplated level of activity of the applicant, and where such guarantee provides assurance of the applicant’s capability to prepare compliant bids for infrastructure capacity.

(18) The infrastructure manager must set any requirements under paragraph (15) in accordance with the criteria contained in Commission Implementing Regulation (EU) 2015/10 of 6 January 2015(1) on criteria for applicants for rail infrastructure capacity and repealing implementing Regulation (EU) No. 870/2014(2).

Co-operation in the allocation of infrastructure capacity crossing more than one network

20.—(1) This regulation applies to the allocation of infrastructure capacity in the form of a train path crossing more than one network of the rail system within the European Union.

(2) Infrastructure managers must –

(a)co-operate to enable the efficient creation and allocation of infrastructure capacity to which this regulation applies, including under a framework agreement, and

(b)before consulting on the draft working timetable in relation to relevant train paths agree with the other relevant infrastructure managers which international train paths are to be included in that draft working timetable.

(3) The international train paths referred to in paragraph (2)(b) may only be adjusted if absolutely necessary.

(4) The infrastructure managers must establish such procedures as are appropriate, in accordance with the requirements set out in these regulations, to enable the co-operation referred to in paragraph (2)(a) to take place, and such procedures must include coordination with representatives of the infrastructure managers whose allocation decisions have an impact on one or more other infrastructure managers.

(5) The procedures established by virtue of paragraph (4) may permit appropriate representatives of infrastructure managers outside the European Union to be associated with these procedures.

(6) The infrastructure managers must inform the European Commission of, and invite representatives to attend, main meetings at which common principles and practices for the allocation of infrastructure crossing more than one network are developed, as an observer.

(7) The infrastructure manager must provide the Office of Rail and Road with sufficient information about the development of common principles and practices for the allocation of infrastructure and from any IT-based allocation systems, to allow it to perform its regulatory supervision.

(8) At any meeting or other activity undertaken to facilitate the allocation of infrastructure capacity across more than one network, decisions may only be taken by representatives of the relevant infrastructure managers.

(9) In acting in accordance with paragraph (2) the infrastructure managers must assess the need for and, where necessary, propose and organise international train paths in such a way as to enable ad hoc capacity for freight services to be granted in accordance with regulation 24.

(10) The prearranged train paths referred to in paragraph (2)(b) must be made available to applicants through any infrastructure manager who participates in the international co-ordination of train paths referred to in this regulation.

Framework agreements

21.—(1) Subject to the requirements of this regulation, and without prejudice to articles 101, 102 and 106 of the Treaty, an infrastructure manager may enter into a framework agreement with an applicant for the purpose of specifying the characteristics of the infrastructure capacity required by and offered to the applicant over a period of time exceeding one working timetable period.

(2) An applicant who is party to a framework agreement may apply for the allocation of capacity in accordance with the terms of that agreement.

(3) Whilst seeking to meet the legitimate commercial needs of the applicant, and without prejudice to paragraph (11), a framework agreement must not specify any train path in detail.

(4) The effect of a framework agreement must not be such as to preclude the use of railway infrastructure subject to that framework agreement by other applicants or services.

(5) A framework agreement must contain terms permitting the amendment or limitation of any condition contained in that framework agreement if such amendment or limitation would enable more efficient use to be made of the railway infrastructure.

(6) A framework agreement may contain penalties applicable on modification or termination of the agreement by any party.

(7) Other than in circumstances described in paragraphs (8) and (9), a framework agreement made in accordance with paragraph (1) will in principle be for a period of five years renewable for periods equal to its original duration, provided that the infrastructure manager may agree to a shorter or longer period in specific cases.

(8) Subject to paragraphs (9) and (10), a framework agreement for a period of longer than five years must be justified by the existence of commercial contracts, specialised investments or risks.

(9) Subject to paragraph (10), a framework agreement in relation to railway infrastructure which has been designated in accordance with regulation 25(2) (“a designated infrastructure framework agreement”) may be for a period of up to fifteen years where there is a substantial and long term investment justified by the applicant.

(10) A framework agreement for a period in excess of fifteen years may be made in exceptional cases, which may be justified by the existence of large-scale and long-term investment and in particular where such investment is covered by contractual commitments.

(11) Whilst respecting commercial confidentiality, the general nature of each framework agreement must be made available by the infrastructure manager to any interested party.

(12) An application for a designated infrastructure framework agreement to which paragraph (9) or (10) applies may specify the capacity characteristics, including the frequency, volume and quality of the train paths, to be provided to the applicant for the duration of the framework agreement in sufficient detail to ensure these are clearly established.

(13) The infrastructure manager may reduce capacity reserved under the terms of a designated infrastructure framework agreement to which paragraph (9) or (10) applies where, over a continuous period of at least one month, that capacity has been used less than the threshold stipulated in the network statement.

Application for infrastructure capacity

22.—(1) Applicants may submit a request to the infrastructure manager, for an agreement granting rights to use railway infrastructure against a charge as provided for in Part 4.

(2) An applicant wishing to apply for infrastructure capacity must submit an application to the infrastructure manager in accordance with the timetable for the allocation process set out in Schedule 3.

(3) Requests for infrastructure capacity to enable maintenance of the network to be carried out must be submitted in accordance with the timetable set out in Schedule 3.

(4) The infrastructure manager must inform interested parties as soon as possible about the unavailability of infrastructure capacity due to unscheduled maintenance work.

Scheduling and co-ordination

23.—(1) The infrastructure manager must, so far as possible—

(a)meet all requests for infrastructure capacity, including those requests for train paths which cross more than one network; and

(b)in doing so, take account of all constraints on applicants, including the economic effect on their business.

(2) The infrastructure manager may give priority to specific services within the scheduling and co-ordination process, but only in accordance with the provisions in regulations 25 and 26.

(3) The infrastructure manager must consult interested parties about the draft working timetable, and must allow such interested parties a period of at least one calendar month to submit their comments.

(4) In the event of conflict between different requests for infrastructure capacity, the infrastructure manager must use all best endeavours, in consultation with the appropriate applicants, to co-ordinate the requests and, in so far as it is reasonable to do so, may propose alternative infrastructure capacity from that requested in order to resolve the conflict.

(5) Consultation under paragraph (4) must be based on the disclosure by the infrastructure manager of the following information within a reasonable time, free of charge and in written or electronic form—

(a)train paths requested by all other applicants on the same routes;

(b)train paths allocated on a preliminary basis to all other applicants on the same routes;

(c)alternative train paths proposed on the relevant routes in accordance with paragraph (4); and

(d)full details of the criteria being used in the capacity allocation process

(6) Information disclosed by the infrastructure manager in accordance with paragraph (5) must not disclose the identity of other applicants, unless the applicants concerned have agreed to such disclosure.

(7) The infrastructure manager must facilitate the establishment and operation of a dispute resolution system, which must be set out in the network statement, to resolve disputes about the allocation of infrastructure capacity and, where that system is applied, a decision on the matters in dispute must be reached no later than ten working days after the final submission of all relevant information in accordance with that system.

(8) The dispute resolution system provided for in paragraph (7) is without prejudice to the right of appeal to the Office of Rail and Road under regulation 32(1).

(9) The infrastructure manager must take such measures as are appropriate to deal with any concerns about the allocation process raised by interested parties.

(10) For the purposes of this regulation “interested parties” includes—

(a)all applicants for infrastructure capacity as part of the specific allocation process to which the draft working timetable relates; and

(b)other parties who have indicated to the Office of Rail and Road, in such form or manner as the infrastructure manager may from time to time require, that they wish to have the opportunity to comment as to the effect that the working timetable might have on their ability to procure rail services during the working timetable period to which the draft working timetable relates.

Ad hoc requests

24.—(1) In addition to making an application for capacity in accordance with the annual timetable process described in regulation 22 an applicant may submit ad hoc requests for infrastructure capacity in the form of individual train paths to the infrastructure manager.

(2) The infrastructure manager must respond to a request described in paragraph (1) as quickly as possible and, in any event, no later than five working days from receipt of the request.

(3) The infrastructure manager must make available, to all potential applicants for such individual train paths, information about available spare capacity on the network for which it is responsible.

(4) The infrastructure manager must, including in the case of congested infrastructure, undertake an evaluation of the need for reserve capacity to be kept available within the final working timetable to enable it to respond rapidly to foreseeable ad hoc requests for infrastructure capacity.

Declaration of specialised infrastructure

25.—(1) Subject to paragraph (2), all infrastructure capacity must be available for the use of all types of rail transport service which conform to the characteristics necessary for use of that infrastructure, as defined in the infrastructure manager’s network statement.

(2) Subject to the provisions set out in paragraph (3), and without prejudice to articles 101, 102 and 106 of the Treaty, an infrastructure manager may designate particular sections of the infrastructure for use by specified types of rail service and, once the infrastructure is so designated, may give priority to that specified type of rail service in the allocation of infrastructure capacity.

(3) Those provisions are that—

(a)suitable alternative routes for other types of rail transport service must exist and be available;

(b)before making such a designation the infrastructure manager must consult the Department, the Office of Rail and Road and all other interested parties; and

(c)such designation must not prevent the use of that designated infrastructure by other types of rail transport service when capacity is available

Congested infrastructure

26.—(1) Where, after the co-ordination of requests for capacity and consultation with the applicants in accordance with regulation 23(4), it is not possible for the infrastructure manager to satisfy requests for infrastructure capacity adequately, the infrastructure manager must declare that element of the infrastructure on which such requests cannot be satisfied to be congested.

(2) Where, during the preparation of the working timetable for the next timetable period, the infrastructure manager considers that an element of the infrastructure is likely to become congested during the period to which that working timetable relates, he must declare that element of the infrastructure to be congested.

(3) When railway infrastructure has been declared to be congested under the provisions of this regulation the infrastructure manager must inform—

(a)existing users of that railway infrastructure;

(b)new applicants for infrastructure capacity which includes that element of the infrastructure which has been declared to be congested;

(c)the Office of Rail and Road; and

(d)the Department.

(4) Where railway infrastructure has been declared to be congested in accordance with paragraph (1) or (2) the infrastructure manager must undertake a capacity analysis of the congested infrastructure, as described in regulation 27, unless a capacity enhancement plan, as described in regulation 28, is in the process of being implemented.

(5) When an element of the infrastructure has been declared to be congested in accordance with paragraphs (1) or (2) and either—

(a)a charge as described in paragraph 1(8) of Schedule 2 has not been levied; or

(b)the charge described in sub-paragraph (a) has been levied but has not achieved a satisfactory result,

the infrastructure manager may set priority criteria for the allocation of infrastructure capacity which includes that congested element of the infrastructure.

(6) The priority criteria referred to in paragraph (5) must—

(a)take account of the importance of a service to society, relative to any other service which will consequently be excluded; and

(b)ensure that freight services, and in particular international freight services, are given adequate consideration in the determination of those criteria.

(7) If during the course of the working timetable period to which the declaration of congested infrastructure relates, but before the completion of the capacity analysis, the congestion is resolved, the infrastructure manager may revoke the declaration made in accordance with sub-paragraph (1).

(8) Where sub-paragraph (7) applies, the infrastructure manager must inform the persons referred to in sub-paragraph (3) that the declaration has been revoked.

Capacity analysis

27.—(1) Where required in accordance with regulation 26(4), the infrastructure manager must carry out a capacity analysis of the congested infrastructure in order to identify the reasons for the congestion and the measures which might be taken in the short and medium term to ease that congestion.

(2) In conducting the capacity analysis, and in order to identify the reasons for the congestion, the infrastructure manager must consider the—

(a)characteristics of the congested railway infrastructure;

(b)operating procedures used on that railway infrastructure; and

(c)characteristics of the different rail services which have been allocated capacity to operate on that infrastructure.

(3) In seeking to determine measures to alleviate congestion the infrastructure manager must consider, in particular—

(a)re-routing of services;

(b)re-timing of services;

(c)alterations to the line-speed; and

(d)infrastructure improvements.

(4) The infrastructure manager must consult the Department during the preparation of the capacity analysis.

(5) The infrastructure manager must complete the capacity analysis within six months from the date on which the railway infrastructure is declared to be congested in accordance with regulation 26(1) or (2) and make the findings of the analysis available to the parties described in regulation 26(3).

Capacity enhancement plan

28.—(1) The infrastructure manager must, within six months of the publication of a capacity analysis in accordance with regulation 27, produce a capacity enhancement plan.

(2) In producing the capacity enhancement plan, the infrastructure manager must—

(a)consult such interested parties as he considers necessary, including those described in regulation 26(3); and

(b)at least one month before the deadline for completion of the plan seek the prior approval of the Department to the capacity enhancement plan

(3) The capacity enhancement plan must identify the—

(a)reasons for the congestion;

(b)likely future development of traffic;

(c)constraints on railway infrastructure development; and

(d)options for and costs of enhancing the capacity, including the potential effect on access charges.

(4) On the basis of a cost benefit analysis of the potential measures for action identified in the capacity enhancement plan, that plan must include—

(a)details of the action to be taken to enhance the capacity of the congested infrastructure; and

(b)a timetable for the completion of the detailed measures identified in accordance with sub-paragraph (a).

(5) Subject to paragraph (6), if the utilisation of capacity on that element of the railway infrastructure which is the subject of the capacity enhancement plan attracts a scarcity charge, in accordance with paragraph 1(8) of Schedule 2 the infrastructure manager must cease the levying of such charge in situations where—

(a)paragraph (1) applies but a capacity enhancement plan for that part of the railway infrastructure which is subject to the scarcity charge has not been produced, as required by this regulation; or

(b)the infrastructure manager fails to make progress with implementation of those areas of the action plan produced in accordance with paragraph (4).

(6) Paragraph (5) does not apply where—

(a)the action plan produced in accordance with paragraph (4) cannot be implemented for reasons beyond the immediate control of the infrastructure manager; or

(b)the options identified in that action plan are not economical or financially viable,

provided that prior approval to continue to levy the scarcity charge is obtained from the Office of Rail and Road.

(7) At the end of the six month period starting with the publication of the capacity analysis in accordance with regulation 27, whether or not the approval sought under paragraph (2) (b) has been received, the infrastructure manager must provide the parties consulted under paragraph (2) (a) with a copy of the plan and the timetable for completion of the measures identified to resolve the congestion.

Use of train paths

29.—(1) Subject to paragraph (2) the infrastructure manager must, in particular where railway infrastructure has been declared to be congested in accordance with regulation 26, require an applicant who has, over a period of at least one month, used a train path less often than the threshold quota stipulated in the network statement, to surrender that train path.

(2) Paragraph (1) does not apply if, in the view of the infrastructure manager, the failure to use the train path in accordance with the threshold quota stipulated in the network statement arose as a result of non-economic reasons outside the control of the applicant.

(3) The infrastructure manager must in the network statement specify conditions under which previous levels of capacity utilisation will be taken into account in determining the priorities to be used in making decisions on the allocation of capacity.

Special measures to be taken in the event of disruption

30.—(1) In the event of disruption to train movements caused by technical failure or accident, the infrastructure manager must take all such steps as are necessary to restore the normal operation of the network.

(2) The infrastructure manager must have in place a contingency plan listing the various bodies who are required to be informed in the event of a serious incident or serious disruption to train movements.

(3) The infrastructure manager may, in the event of an emergency and where absolutely necessary on account of a breakdown which renders a part of the railway infrastructure temporarily unusable, withdraw allocated train paths without warning and with immediate effect for such period as is necessary to repair the affected infrastructure.

(4) Subject to paragraph (5), the infrastructure manager may, if he deems it to be necessary, require applicants to make available to him such resources as the infrastructure manager considers appropriate to restore the normal operation of the network as quickly as possible.

(5) Where a contract or framework agreement between an applicant and the infrastructure manager incorporates conditions as to the special measures to be taken in the event of disruption, the resources required by the infrastructure manager under paragraph (4) must be in accordance with those conditions.

(1)

O.J. No. L3, 7.1.15, p.34

(2)

O.J. No. L237/11, 12.8.14

Back to top

Options/Help

Print Options

Close

Legislation is available in different versions:

Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.

Original (As Enacted or Made):The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.

Close

Opening Options

Different options to open legislation in order to view more content on screen at once

Close

Explanatory Memorandum

Explanatory Memorandum sets out a brief statement of the purpose of a Statutory Rule and provides information about its policy objective and policy implications. They aim to make the Statutory Rule accessible to readers who are not legally qualified and accompany any Northern Ireland Statutory Rule or Draft Northern Ireland Statutory Rule laid before the UK Parliament during the suspension of the Northern Ireland Assembly.

Close

More Resources

Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • correction slips
  • links to related legislation and further information resources
Close

More Resources

Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as made version that was used for the print copy
  • correction slips

Click 'View More' or select 'More Resources' tab for additional information including:

  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • links to related legislation and further information resources