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

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Appeals to the regulatory body

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32.—(1) Subject to paragraph (3), an applicant has the right of appeal to the Office of Rail and Road if it believes that it has been unfairly treated, discriminated against or is in any other way aggrieved and, in particular, against decisions adopted by the infrastructure manager, an allocation body, a charging body, a service provider or as the case may be, a railway undertaking or any interested party, concerning the matters described in paragraph (2).

(2) Those matters are—

(a)the network statement produced in accordance with regulation 13, in its provisional and final versions;

(b)the information which, by virtue of regulation 13(4), must be included in that network statement;

(c)the allocation process and its result as prescribed in Part 5 and Schedule 3;

(d)the charging scheme and charging system established in accordance with regulation 14;

(e)the level of structure of railway infrastructure charges, the principles of which are prescribed in Part 4 and Schedule 2, which it is, or may be, required to pay;

(f)the arrangements for access granted under Part 2 and Schedule 1; and

(g)access to and charging for services provided under Part 2 and Schedule 1.

(3) Where the Office of Rail and Road has received an appeal under paragraph (1) it must -

(a)as appropriate, ask for all relevant information and initiate a consultation with the relevant parties within one month of the date of receipt of the appeal; and

(b)within a predetermined and reasonable time, and, in any case, within six weeks of the date of receipt of all relevant information (including information provided pursuant to regulations 31 and 36)—

(i)make a decision;

(ii)inform the relevant parties of its decision, providing reasons for this;

(iii)where appropriate, issue a direction to the infrastructure manager, allocation body, charging body, service provider or, as the case may be, railway undertaking, to remedy the situation from which the appeal arose; and

(iv)publish the decision.

(4) When an appeal under paragraph (1) contests a decision under regulation 5(4) to refuse a request for access to, and the supply of services described in paragraph 2 of Schedule 1, a decision under paragraph (3) must include a determination as to whether, in respect of the access and provision of services to which the appeal relates, a viable alternative exists.

(5) When an appeal under paragraph (1) contests a decision to refuse or restrict the provision of services in circumstances where there are conflicting requests as described in regulation 5(7), a determination under paragraph (3) must include a determination, as appropriate and in respect of the circumstances to which the appeal relates, of—

(a)whether a viable alternative as described in regulation 5(4) exists;

(b)whether it is possible to accommodate the conflicting requests on the basis of demonstrated need; and

(c)whether, and if so what, part of the service capacity must be granted to the applicant.

(6) Where a decision under paragraph (3) concerns a refusal by the infrastructure manager or allocation body to allocate infrastructure capacity, or concerns an appeal against the terms of an offer of infrastructure capacity, the Office of Rail and Road must, in such a decision, either—

(a)confirm that no modification of the infrastructure manager or allocation body’s decision is required; or

(b)require modification of that decision in accordance and issue directions to that effect.

(7) Without prejudice to the right of any person to make an application to the court under Order 53 of the Rules of the Court of Judicature (Northern Ireland) 1980(1).

(a)a decision by the Office of Rail and Road on an appeal brought under this regulation is binding on all parties affected by that decision;

(b)it is the duty of any person to whom a direction is given under this regulation to comply with and give effect to that direction.

(1)

The Rules of the Supreme Court were renamed the Rules of the Court of Judicature under para 3(3) of Schedule 11 to the Constitutional Reform Act 2005.

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