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Commencement Orders bringing legislation that affects this Act into force:

Part IE+W+S+N.I. The Provision of Railway Services

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Modifications etc. (not altering text)

C1Pt. I (ss. 1-83) modified (18.12.1996) by 1996 c. 61, s. 21(6)

C2Pt. 1 (ss. 1-83) applied (S.) (27.4.2006) by Edinburgh Tram (Line Two) Act 2006 (asp. 6), s.78 (with s.75)

Pt. 1 (ss. 1-83) applied (S.) (8.5.2006) by Edinburgh Tram (Line One) Act 2006 (asp. 7), s.79 (with ss.76, 84)

Commencement Information

I1Pt. I (ss. 1-83) applied (1.4.1994) by 1993 c. 43, ss. 36(2) (inserting s. 10(1)(viiia) in 1968 c. 73); S.I. 1994/571, art. 5

Pt. I (ss. 1-83) applied (18.12.1996) by 1996 c. 61, s. 16(5)

IntroductoryE+W+S

1 The Rail Regulator. . ..E+W+S

F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

2[F2Passengers’ Committees].E+W+S

F3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F2Words in s. 2(2)-(6)(6A)(7)(8) and sidenote substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 Pt. I para. 2; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

F4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

4 General duties of the Secretary of State and the Regulator.E+W+S

(1)[F5the Office of Rail Regulation][F6shall] have a duty to exercise the functions assigned or transferred to [F7it] under or by virtue of this Part [F8or the Railways Act 2005 that are not safety functions] in the manner which [F7it] considers best calculated—

[F9(zb)to promote improvements in railway service performance;

(a)otherwise to protect the interests of users of railway services;]

(b)to promote the use of the railway network in Great Britain for the carriage of passengers and goods, and the development of that railway network, to the greatest extent that [F7 it] considers economically practicable;

[F10(ba)to contribute to the development of an integrated system of transport of passengers and goods;

(bb)to contribute to the achievement of sustainable development;]

(c)to promote efficiency and economy on the part of persons providing railway services;

(d)to promote competition in the provision of railway services [F11for the benefit of users of railway services];

(e)to promote measures designed to facilitate the making by passengers of journeys which involve use of the services of more than one passenger service operator;

(f)to impose on the operators of railway services the minimum restrictions which are consistent with the performance of [F12its] functions under this Part [F13or the Railways Act 2005 that are not safety functions];

(g)to enable persons providing railway services to plan the future of their businesses with a reasonable degree of assurance.

(2)Without prejudice to the generality of subsection (1)(a) above, [F5the Office of Rail Regulation][F14shall] have a duty, in particular, to exercise the functions assigned or transferred to [F7it] under or by virtue of this Part [F8or the Railways Act 2005 that are not safety functions] in the manner which [F7it] considers is best calculated to protect—

(a)the interests of users and potential users of services for the carriage of passengers by railway provided by a private sector operator otherwise than under a franchise agreement, in respect of—

(i)the prices charged for travel by means of those services, and

(ii)the quality of the service provided,

F15. . . ; and

(b)the interests of persons providing services for the carriage of passengers or goods by railway in their use of any railway facilities which are for the time being vested in a private sector operator, in respect of—

(i)the prices charged for such use; and

(ii)the quality of the service provided.

(3)[F5the Office of Rail Regulation][F16 shall] be under a duty in exercising the functions assigned or transferred to [F7it] under or by virtue of this Part [F8 or the Railways Act 2005 that are not safety functions]

(a)to take into account the need to protect all persons from dangers arising from the operation of railways, F17. . . ; and

(b)to have regard to the effect on the environment of activities connected with the provision of railway services.

[F18(3A)Subsections (1) to (3) above shall have effect in relation to the Secretary of State as in relation to [F5the Office of Rail Regulation] except that in their application to the Secretary of State—

(a)F19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)the references in each of the subsections to the functions transferred or assigned to the Secretary of State under or by virtue of this Part include only the functions transferred or assigned to him under or by virtue of sections 6 to 22 F20. . . below [F21and

(c)the references in each of the subsections to the functions transferred or assigned under or by virtue of the Railways Act 2005 include only the functions transferred or assigned to the Secretary of State under or by virtue of the provisions of Part 4 of that Act other than section 39.]]

[F22(3B)Subsections (1) to (3) above shall have effect in relation to the Scottish Ministers as in relation to the Office of Rail Regulation except that, in relation to those Ministers—

(a)the references in each of the subsections to functions transferred or assigned to those Ministers under or by virtue of Part 1 of this Act include only the functions transferred or assigned under or by virtue of sections 16A to 16G of this Act; and

(b)the references in each of the subsections to the functions transferred or assigned under or by virtue of the Railways Act 2005 include only the functions transferred or assigned to those Ministers under or by virtue of Part 4 of that Act.

(3C)Subsections (1) to (3) above shall have effect in relation to the National Assembly for Wales as in relation to the Office of Rail Regulation except that, in relation to that Assembly, the references in each of the subsections to functions transferred or assigned under or by virtue of Part 1 of this Act or the Railways Act 2005 include only the functions transferred or assigned to the Assembly under or by virtue of the provisions of Part 4 of that Act of 2005 other than section 39.]

(4)The Secretary of State shall also be under a duty, in exercising the functions assigned or transferred to him under or by virtue of this Part [F23or the Railways Act 2005] , to promote the award of franchise agreements to companies in which qualifying railway employees have a substantial interest, “qualifying railway employees” meaning for this purpose persons who are or have been employed in an undertaking which provides or provided the services to which the franchise agreement in question relates at a time before those services begin to be provided under that franchise agreement.

(5)[F5the Office of Rail Regulation] shall also be under a duty in exercising the functions assigned or transferred to [F7it] under this Part [F24or the Railways Act 2005 that are not safety functions]

[F25(a)to have regard to any general guidance given to [F7it] by the Secretary of State about railway services or other matters relating to railways;

[F26(aa)to have regard to any general guidance given to it by the Scottish Ministers about railway services wholly or partly in Scotland or about other matters in or as regards Scotland that relate to railways;

(ab)in having regard to any guidance falling within paragraph (aa), to give what appears to it to be appropriate weight to the extent (if any) to which the guidance relates to matters in respect of which expenditure is to be or has been incurred by the Scottish Ministers;]]

(b)to act in a manner which [F7it] considers will not render it unduly difficult for persons who are holders of network licences to finance any activities or proposed activities of theirs in relation to which [F5the Office of Rail Regulation] has functions under or by virtue of this Part [F27or that Act] (whether or not the activities in question are, or are to be, carried on by those persons in their capacity as holders of such licences); F28. . .

[F29(c)to have regard to the funds available to the Secretary of State for the purposes of his functions in relation to railways and railway services;

(ca)to have regard to any notified strategies and policies of the National Assembly for Wales, so far as they relate to Welsh services or to any other matter in or as regards Wales that concerns railways or railway services;

(cb)to have regard to the ability of the National Assembly for Wales to carry out the functions conferred or imposed on it by or under any enactment;]

[F30(d)to have regard to the ability of the Mayor of London, F31. . . and Transport for London to carry out the functions conferred or imposed on them by or under any enactment]

[F32(5A)Before giving any guidance for the purposes of subsection (5)(a) above the Secretary of State must consult the National Assembly for Wales.

(5B)In exercising its safety functions, other than its functions as an enforcing authority for the purposes of the Health and Safety at Work etc. Act 1974, the Office of Rail Regulation shall be under a duty to have regard to any general guidance given to it by the Secretary of State.

(5C)In performing its duties under subsections (1) to (5A) above in relation to—

(a)any matter affecting the interests of users or potential users of railway services,

(b)any matter affecting the interests of persons providing railway services, or

(c)any matter not falling within paragraph (a) or (b) but falling within subsection (5D),

the Office of Rail Regulation must have regard, in particular, to the interests, in securing value for money, of the persons mentioned in paragraphs (a) and (b) above, of the persons who make available the resources and other funds mentioned in that subsection and of the general public.

(5D)A matter falls within this subsection if the Office of Rail Regulation has been informed that—

(a)public financial resources (within the meaning of paragraph 1D of Schedule 4A to this Act), or

(b)funds that do not comprise such resources but are provided in whole or in part by Transport for London, the National Assembly for Wales, a Passenger Transport Executive or any other body in receipt of such resources,

are or are likely to become available to be applied for purposes connected with that matter.]

(6)In performing [F12its] duty under subsection (1)(a) above so far as relating to services for the carriage of passengers by railway or to station services, [F5the Office of Rail Regulation] shall have regard, in particular, to the interests of persons who are disabled.

(7)Without prejudice to the generality of paragraph (e) of subsection (1) above, any arrangements for the issue and use of through tickets shall be regarded as a measure falling within that paragraph.

[F33(7ZA)Where any general guidance is given to the Office of Rail Regulation for the purposes of subsection (5)(a) or (aa) or (5B)—

(a)it may be varied or revoked by the person giving it at any time; and

(b)the guidance, and any variation or revocation of the guidance, must be published by that person in such manner as he considers appropriate.]

[F34(7A)Subsections (1) to (6) above do not apply in relation to anything done by [F5the Office of Rail Regulation] in the exercise of functions assigned to [F7it] by section 67(3) below (“Competition Act functions”).

(7B)[F5the Office of Rail Regulation] may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by any of subsections (1) to (6) above, if it is a matter to which [F35the Office of Fair Trading] could have regard when exercising that function.]

(8)F36. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)In this section—

  • [F37 the environment” means all , or any, of the following media, namely , the air, water and land (and the medium of air includes the air within buildings and the air within other natural or man-made structures above or below ground);]

  • [F38notified strategies and policies”, in relation to the National Assembly for Wales, means the strategies and policies of that Assembly that have been notified by that Assembly for the purposes of this section to the Office of Rail Regulation;]

  • the passenger transport market” means the market for the supply of services for the carriage of passengers, whether by railway or any other means of transport;

  • [F39railway service performance” includes, in particular, performance in securing each of the following in relation to railway services—

    (a)

    reliability (including punctuality);

    (b)

    the avoidance or mitigation of passenger overcrowding; and

    (c)

    that journey times are as short as possible;

  • safety functions” means functions assigned or transferred to the Office of Rail Regulation—

    (a)

    under this Part,

    (b)

    under or by virtue of the Railways Act 2005, or

    (c)

    under or by virtue of the Health and Safety at Work etc. Act 1974,

    so far as they are being exercised for the railway safety purposes (within the meaning of Schedule 3 to the Railways Act 2005) or for purposes connected with those purposes.]

  • F40. . .

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Amendments (Textual)

F5Words in s. 4 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F6Words in s. 4(1) substituted (1.2.2001) by 2000 c. 38, s. 224(2)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F7Words in s. 4 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(b) Table}; S.I. 2004/827, art. 4(g)

F8Words in s. 4(1)-(3) inserted (8.6.2005 for certain purposes and 1.4.2006 in so far as not already in force) by Railways Act 2005 (c. 14), ss. 3(2), 60; S.I. 2005/1444, art. 2(1), Sch. 1; S.I. 2006/266, art. 2(2), Sch.

F9S. 4(zb)(a) substituted (26.6.2005) for s.4(za)(a) by Railways Act 2005 (c. 14), ss. 3(3), 60; S.I. 2005/1444, art. 2(2), Sch. 2

F10S. 4(1)(ba)(bb) inserted (1.2.2001) by 2000 c. 38, s. 224(2)(c); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F11Words in s. 4(1)(d) inserted (1.2.2001) by 2000 c. 38, s. 224(2)(d); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F12Word in s. 4 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(c) Table}; S.I. 2004/827, art. 4(g)

F13Words in s. 4(1)-(3) inserted (8.6.2005 for certain purposes and otherwise prosp.) by Railways Act 2005 (c. 14), ss. 3(2), 60; S.I. 2005/1444, art. 2(1), Sch. 1

F14Words in s. 4(2) substituted (1.2.2001) by 2000 c. 38, s. 224(3)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F16Words in s. 4(3) substituted (1.2.2001) by 2000 c. 38, s. 224(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F18S. 4(3A) inserted (1.2.2001) by 2000 c. 38, s. 224(5); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F20Words in s. 4(3A)(b) repealed (1.12.2006) by Railways Act 2005 (c. 14), ss. 59, 60, Sch. 13 Pt. 1 (with s. 14(4)(5), Sch. 11 para. 11(2)); S.I. 2006/2911, art. 2, Sch. (subject to the transitional and saving provisions in arts. 3-7)

F21S. 4(3A)(c) and preceding word inserted (1.12.2006) by Railways Act 2005 (c. 14), ss. 3(5), 60; S.I. 2006/2911, art. 2, Sch. (subject to the transitional and saving provisions in arts. 3-7)

F22S. 4(3B)(3C) inserted (16.10.2005 for certain purposes and 1.12.2006 in so far as not already in force) by Railways Act 2005 (c. 14), ss. 3(6), 60; S.I. 2005/2812, art. 2(1), Sch. 1; S.I. 2006/2911, art. 2, Sch. (subject to the transitional and saving provisions in arts. 3-7)

F24Words in s. 4(5) inserted (8.6.2005 for certain purposes and 1.4.2006 in so far as not already in force) by Railways Act 2005 (c. 14), ss. 3(8)(a), 60; S.I. 2005/1444, art. 2(1), Sch. 1; S.I. 2006/266, art. 2(2), Sch.

F25S. 4(5)(a) substituted (1.2.2001) by 2000 c. 38, s. 224(6); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F27Words in s. 4(5)(b) inserted (8.6.2005) by Railways Act 2005 (c. 14), ss. 3(8)(c), 60; S.I. 2005, 1444, {art. 2(1)}, Sch. 1

F28Word in s. 4(5) omitted (3.7.2000) by virtue of 1999 c. 29, s. 200(4) (with Sch. 12 para. 9(1)); S.I. 2000/801, art. 2(c), Sch.

F32S. 4(5A)-(5D) inserted (8.6.2005 for certain purposes and 1.4.2006 for certain further purposes and 29.1.2007 in so far as not already in force) by Railways Act 2005 (c. 14), ss. 3(9), 60; S.I. 2005/1444, art. 2(1), Sch. 1; S.I. 2006/266, art. 2(2), Sch.; S.I. 2007/62, art. 2

F33S. 4(7ZA) substituted (16.10.2005 for certain purposes and 1.4.2006 in so far as not already in force) by Railways Act 2005 (c. 14), ss. 3(6), 60; S.I. 2005/2812, art. 2(1), Sch. 1; S.I. 2006/266, art. 2(2), Sch.

F35Words in s. 4(7B) substituted (1.4.2003) by 2002 c. 40, ss. 278, 279, Sch. 25 para. 30(2)(b); S.I. 2003/766, art. 2, Sch. (with art. 3)

F37S. 4(9): definition of “the environment" substituted (14.12.1999) by 1999 c. 24, s. 6, Sch. 2 para. 12; S.I. 1999/3376, art. 2

F38S. 4(9): definition of "notified strategies and policies" inserted (24.7.2005) by Railways Act 2005 (c. 14), ss. 3(11)(a), 60; S.I. 2005/1909, art. 2, Sch.

F39S. 4(9): definition of "railway service performance" and "safety functions" inserted (26.6.2005 for certain purposes and 1.4.2006 in so far as not already in force) by Railways Act 2005 (c. 14), ss. 3(11)(b), 60; S.I. 2005/1444, art. 2(2), Sch. 2; S.I. 2006/266, art. 2(2), Sch.

F40S. 4(9): definition of "through ticket" 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)

Commencement Information

I2S. 4 wholly in force at 21.3.1994; s. 4 not in force at Royal Assent see s. 154(2); s. 4(1)(3)(7)(9) in force for specified purposes at 24.12.1993 by S.I. 1993/3237, art. 2(1); s. 4(1)-(3)(5)(6) in force for specified purposes at 22.2.1994 by S.I. 1994/447, art. 2 and in force at 21.3.1994 insofar as not already in force by S.I. 1994/571, art. 3

F415. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

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Amendments (Textual)

F41S. 5 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)

Licensing of operators of railway assetsE+W+S

6 Prohibition on unauthorised operators of railway assets.E+W+S

(1)Any person who acts as the operator of a railway asset is guilty of an offence unless—

(a)he is authorised to be the operator of that railway asset by a licence; or

(b)he is exempt, by virtue of section 7 below, from the requirement to be so authorised.

[F42(1A)This section does not apply to a person who acts as the operator of a railway asset to the extent that the asset is operated for the purpose of providing [F43services for which a European licence is required]]

(2)In this Part—

  • [F44European licence” means a licence granted pursuant to a provision contained in any instrument made for the purpose of implementing Council Directive 1995/18/EC dated 19th June 1995 on the licensing of railway undertakings, as amended by Directive 2001/13/EC dated 26th February 2001 and Directive 2004/49/EC dated 29th April 2004, both of the European Parliament and of the Council, or pursuant to any action taken by an EEA State for that purpose;]

  • F45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • operator”, in relation to any railway asset, means the person having the management of that railway asset for the time being;

  • railway asset” means—

    (a)

    any train being used on a network, whether for the purpose of carrying passengers or goods by railway or for any other purpose whatsoever;

    (b)

    any network;

    (c)

    any station; or

    (d)

    any light maintenance depot.

[F46(2A)In subsection (2) above, “EEA State” means a member State, Norway, Iceland or Liechtenstein.]

(3)Any person who is guilty of an offence under this section shall be liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to a fine.

(4)No proceedings shall be instituted in England and Wales in respect of an offence under this section except by or on behalf of the Secretary of State or [F47the Office of Rail Regulation] .

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Amendments (Textual)

F42S. 6(1A) inserted (27.6.1998) by S.I. 1998/1340, reg. 21(2)

F45S. 6(2): definition of "international services" omitted (28.11.2005) by virtue of The Railway (Licensing of Railway Undertakings) Regulations 2005 (S.I. 2005/3050), reg. 3, Sch. 1 para. 3(3)(b)

F47Words in s. 6(4) substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

Modifications etc. (not altering text)

C4S. 6(1) excluded (18.12.1996) by 1996 c. 61, s. 16(1)

Commencement Information

I3S. 6 wholly in force at 1.4.1994; s. 6 not in force at Royal Assent see s. 154(2); s. 6(2) in force at 6.1.1994 by S.I. 1993/3237, art. 2(2), s. 6 in force at 1.4.1994 insofar as not already in force by S.I. 1994/571, art. 5

7 Exemptions from section 6.E+W+S

(1)The Secretary of State may, after consultation with [F48the Office of Rail Regulation]F49. . . , by order grant exemption from the requirement to be authorised by licence to be the operator of such railway assets, or of railway assets of such a class or description, as may be specified in the order, but subject to compliance with such conditions (if any) as may be so specified.

(2)A licence exemption under subsection (1) above may be granted either—

(a)to persons of a particular class or description; or

(b)to a particular person;

and a licence exemption granted to persons of a particular class or description shall be published in such manner as the Secretary of State considers appropriate for bringing it to the attention of persons of that class or description.

(3)If any person makes an application under this subsection to [F48the Office of Rail Regulation] for the grant of an exemption from the requirement to be authorised by licence to be the operator of such railway assets, or of railway assets of such a class or description, as he may specify in the application, [F48the Office of Rail Regulation] , after consultation with the Secretary of State F49. . . —

(a)may either grant or refuse the exemption, whether wholly or to such extent as [F50it] may specify in the exemption; and

(b)if and to the extent that [F50it] grants [F51the exemption] , may do so subject to compliance with such conditions (if any) as [F50it] may so specify.

(4)Before granting a licence exemption under subsection (3) above, [F48the Office of Rail Regulation] shall give notice—

(a)stating that [F50it] proposes to grant the licence exemption,

(b)stating the reasons why [F50it] proposes to grant the licence exemption; and

(c)specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed licence exemption may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(5)A notice under subsection (4) above shall be given by publishing the notice in such manner as [F48the Office of Rail Regulation] considers appropriate for bringing it to the attention of persons likely to be affected by the grant of the licence exemption.

F52

(6)If any condition (the “broken condition") of a licence exemption is not complied with—

(a)the Secretary of State, in the case of a licence exemption under subsection (1) above, or

(b)[F48the Office of Rail Regulation], in the case of a licence exemption under subsection (3) above,

may give to any relevant person a direction declaring that the licence exemption is revoked, so far as relating to that person, to such extent and as from such date as may be specified in the direction.

F52

(7)For the purposes of [F53this section]

  • condition”, in relation to a licence exemption, means any condition subject to compliance with which the licence exemption was granted;

  • relevant person”, in the case of any licence exemption, means a person who has the benefit of the licence exemption and who—

    (a)

    is a person who failed to comply with the broken condition or with respect to whom the broken condition is not complied with; or

    (b)

    is the operator of any of the railway assets in relation to which the broken condition is not complied with.

(8)Where the Secretary of State or [F48the Office of Rail Regulation] gives a direction under subsection (6) above to any person, he [F54or it] may also direct that person to refrain from being the operator of any railway assets or of such railway assets, or railway assets of such a class or description, as may be specified in the direction by virtue of this subsection.

F52

(9)Subject to [F55subsection (6)] above, a licence exemption, unless previously revoked in accordance with any term contained in the licence exemption, shall continue in force for such period as may be specified in, or determined by or under, the licence exemption.

F56(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11)Any application for a licence exemption under subsection (3) above must be made in writing; and where any such application is made, [F48the Office of Rail Regulation] may require the applicant to furnish him with such information as [F48the Office of Rail Regulation] may consider necessary to enable [F50it] to decide whether to grant or refuse the licence exemption.

(12)Licence exemptions may make different provision, or be granted subject to compliance with different conditions, for different cases.

(13)In this Part “licence exemption” means an exemption, granted under any provision of this section in respect of a railway asset or in respect of railway assets of any class or description, from the requirement to be authorised by licence to be the operator of that railway asset or, as the case may be, railway assets of that class or description.

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Amendments (Textual)

F48Words in s. 7 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F50Words in s. 7 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), 22. 16, 120, {Sch. 2 para. 3(b) Table}; S.I. 2004/827, art. 4(g)

F53Words in s. 7(7) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 2(6) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F56S. 7(10) repealed (15.1.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV and omitted (1.2.2001) by virtue of 2000 c. 38, s. 252, Sch. 27 para. 18; S.I. 2000/3376, art. 2; S.I. 2001/57, art. 3, Sch. 2 (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

7A Consumer protection conditions.E+W+S

F57. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

8 Licences.E+W+S

(1)Subject to the following provisions of this section—

(a)the Secretary of State after consultation with [F58the Office of Rail Regulation]F59. . . , or

(b)[F58the Office of Rail Regulation] with the consent [F60, or in accordance with a general authority, of the Secretary of State F59. . . ,]

may grant to any person a licence authorising the person to be the operator of such railway assets, or of railway assets of such a class or description, as may be specified in the licence.

(2)Any general authority given to [F58the Office of Rail Regulation] under subsection (1)(b) above

[F61(a)F62. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)may include a requirement for [F58the Office of Rail Regulation] either to consult the Secretary of State, or a requirement to obtain his approval before granting a licence;

but a failure to comply with such a requirement shall not affect the validity of the licence.]

(3)Any application for a licence—

(a)shall be made in the prescribed manner;

(b)shall be accompanied by such fee (if any) as may be prescribed in the case of a licence of the description in question; and

(c)shall, if the Secretary of State so requires, be published by the applicant in the prescribed manner and within such period as may be notified to the applicant by the Secretary of State;

and, on any such application, the Secretary of State or, as the case may be, [F58the Office of Rail Regulation] may either grant or refuse the licence.

(4)Before granting a licence, the Secretary of State or [F58the Office of Rail Regulation] shall give notice—

(a)stating that he [F63or it] proposes to grant the licence,

(b)stating the reasons why he [F63or it] proposes to grant the licence, and

(c)specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed licence may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(5)A notice under subsection (4) above shall be given by publishing the notice in such manner as the Secretary of State or [F58the Office of Rail Regulation] considers appropriate for bringing it to the attention of persons likely to be affected by the grant of the licence.

(6)A licence shall be in writing and, unless previously revoked or surrendered in accordance with any terms contained in the licence, shall continue in force for such period as may be specified in or determined by or under the licence; and a licence shall not be capable of being surrendered [F64unless [F58the Office of Rail Regulation][F65consents] to the surrender] if it is—

(a)a passenger licence;

(b)a network licence;

(c)a station licence; or

(d)a light maintenance depot licence.

(7)As soon as practicable after the granting of a licence, the grantor shall send a copy—

(a)in the case of a licence granted by the Secretary of State, to [F58the Office of Rail Regulation]F66. . . ; or

(b)in the case of a licence granted by the [F58the Office of Rail Regulation], [F67to the [F68Secretary of State]]. . . .

(8)Any power to make regulations by virtue of subsection (3) above shall only be exercisable by the Secretary of State after consultation with [F58the Office of Rail Regulation]F69. . .

(9)Different fees may be prescribed under subsection (3) above in respect of licences authorising a person to be the operator of railway assets of different classes or descriptions.

F70(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11)Any sums received by the Secretary of State or [F58the Office of Rail Regulation] under this section shall be paid into the Consolidated Fund.

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Amendments (Textual)

F58Words in s. 8 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F60Words in s. 8(1)(b) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 4(2)(b) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F61S. 8(2)(a)(b) and words substituted for words (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 4(3) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F64Words in s. 8(6) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 4(4) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F66Words in s. 8(7)(a) repealed (24.7.2005 for certain purposes and 1.4.2006 otherwise) by Railways Act 2005 (c. 14), ss. 1, 59, 60, Sch. 1 para. 4(a), Sch. 13 Pt. 1 (with s. 14(4)(5), Sch. 11 para. 11(2)); S.I. 2005/1909, art. 2, Sch.; S.I. 2006/266, art. 2(2), Sch.

F67Words in s. 8(7) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 4(5) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F70S. 8(10) 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)

C6S. 8 restricted (18.12.1996) by 1996 c. 61, s. 16(3)

9Conditions of licences: general.E+W+S

(1)A licence may include—

(a)such conditions (whether or not relating to the licence holder’s being the operator of railway assets under the authorisation of the licence) as appear to the grantor to be requisite or expedient having regard to the duties imposed by section 4 above; and

(b)conditions requiring the rendering to—

(i)the Secretary of State,

(ii)[F71the Office of Rail Regulation], or

(iii)any other person, or any other person of a class or description, specified in the licence, except a Minister of the Crown or Government department,

of a payment on the grant of the licence, or payments during the currency of the licence, or both, of such amount or amounts as may be determined by or under the licence.

(2)Conditions included in a licence by virtue of subsection (1)(a) above—

(a)may require the licence holder to enter into any agreement with any person for such purposes as may be specified in the conditions; and

(b)may include provision for determining the terms on which such agreements are to be entered into.

(3)Conditions included in a licence by virtue of subsection (1)(a) above may require the licence holder—

(a)to comply with any requirements from time to time imposed by a qualified person with respect to such matters as are specified in the licence or are of a description so specified;

(b)except in so far as a qualified person consents to his doing or not doing them, not to do or to do such things as are specified in the licence or are of a description so specified;

(c)to refer for determination by a qualified person such questions arising under the licence as are specified in the licence or are of a description so specified;

(d)to refer for approval by a qualified person such things falling to be done under the licence as are specified in the licence or are of a description so specified;

(e)to furnish to a qualified person such documents or other information as he may require for the purpose of exercising any functions conferred or imposed on him under or by virtue of the licence;

(f)to furnish to the Secretary of State or [F71the Office of Rail Regulation] such documents or other information as he [F72or it] may require for the purpose of exercising the functions assigned or transferred to him [F72or it] under or by virtue of this Part [F73or Part 4 of the Railways Act 2005] .

[F74(3A)Conditions included in a licence by virtue of subsection (1)(a) above may include provision about any matter which is dealt with (whether in the same or a different manner) by an access agreement.]

(4)Conditions included in a licence may contain provision for the conditions to cease to have effect or be modified at such times, in such manner and in such circumstances as may be specified in or determined by or under the conditions; and any provision included by virtue of this subsection in a licence shall have effect in addition to the provision made by this Part with respect to the modification of the conditions of a licence.

(5)Subsections (2) to (4) above are without prejudice to the generality of subsection (1)(a) above.

(6)Any reference in subsection (3) above to a “qualified person” is a reference to—

(a)a person specified in the licence in question for the purpose in question, or

(b)a person of a description so specified,

and includes a reference to a person nominated for that purpose by such a person pursuant to the licence.

(7)Any sums received by the Secretary of State or the [F71the Office of Rail Regulation] in consequence of the provisions of any condition of a licence shall be paid into the Consolidated Fund.

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Amendments (Textual)

F71Words in s. 9 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F73Words in s. 9(3)(f) inserted (1.12.2006) by Railways Act 2005 (c. 14), ss. 54, 60, Sch. 11 para. 2; S.I. 2006/2911, art. 2, Sch. (subject to the transitional and saving provisions in arts. 3-7)

F74S. 9(3A) inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 19; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

10 Conditions of licences: activities carried on by virtue of a licence exemption.E+W+S

(1)If and so long as a person is a licence exempt operator—

(a)there shall not be included in any licence granted to him any condition which relates to his licence exempt activities, except to the extent permitted by virtue of subsection (2) below; and

(b)any such condition which is included in a licence which has been granted to him shall, except to that extent, be of no effect so far as so relating.

(2)A condition which relates to both—

(a)a licensed activity carried on by a person (“the licensee"), and

(b)a licence exempt activity carried on by him,

may be included in a licence, but only if and to the extent that, in the opinion of the person granting the licence, the condition must, in consequence of the licensee’s carrying on of a mixed activity, necessarily have effect in relation to the whole, or some part, of so much of the mixed activity as consists of the licence exempt activity if the condition is to have full effect in relation to so much of the mixed activity as consists of the licensed activity.

(3)There shall not be included in a licence any condition relating to the fares that may be charged in respect of train journeys involving licence exempt travel, other than train journeys which also involve—

(a)licensed travel; and

(b)at least two consecutive scheduled calls at stations during any one continuous spell of licensed operation.

(4)For the purposes of subsection (3) above and this subsection—

  • F75. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • licence exempt travel” means travel by means of a train whose operator is, by virtue of a licence exemption, exempt from the requirement to be authorised by licence to be the operator of that train for the whole, or for some part, of the train journey in question;

  • licensed travel” means travel by means of a train whose operator is authorised by licence to be the operator of that train for some part of the train journey in question;

  • spell of licensed operation”, in the case of any train journey, means any part of the journey throughout which the operator of the train in question lawfully acts as such by virtue only of holding one or more licences;

  • train journey” means a journey between any two stations which is scheduled to be made by means of one train (irrespective of where the train in question begins or ends its journey).

(5)Subsection (3) above has effect notwithstanding anything in subsection (1) or (2) above; and section 9 above is subject to the provisions of this section.

(6)In this section—

  • licence exempt activity” means any activity which a person carries on in his capacity as a licence exempt operator;

  • licence exempt operator” means an operator of railway assets, or railway assets of a class or description, who is, by virtue of a licence exemption, exempt from the requirement to be authorised by licence to be the operator of those railway assets or of railway assets of that class or description;

  • licensed activity” means any activity which a person carries on in his capacity as a licence holder;

  • mixed activity” means any activity which is carried on by a person who is both a licence holder and a licence exempt operator and which is carried on by him in part as a licensed activity and in part as a licence exempt activity.

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Amendments (Textual)

11 Assignment of licences.E+W+S

(1)A licence shall be capable of being assigned, but only if it includes a condition authorising assignment.

(2)A licence shall not be capable of being assigned except with the consent

[F76(a)the Secretary of State, if he is specified for the purpose in the licence; or

(b)[F77the Office of Rail Regulation]F78. . . , in any other case.]

F79(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Any consent under subsection (2) above may be given subject to compliance with such conditions as [F80are imposed by the person F81. . . giving the consent], which may include conditions modifying, or requiring or otherwise providing for the making of modifications to, the conditions of the licence.

(5)A licence may include conditions which must be complied with before the licence can be assigned.

(6)An assignment, or purported assignment, of a licence shall be void—

(a)if the licence is not capable of assignment;

(b)if the assignment, or purported assignment, is in breach of a condition of the licence; or

(c)if there has, before the assignment or purported assignment, been a contravention of a condition subject to compliance with which the consent required by subsection (2) above is given.

(7)A licence shall not be capable of being assigned under or by virtue of any other provision of this Act, other than paragraph 4 of Schedule 7 to this Act.

(8)In this section “assignment” includes any form of transfer and cognate expressions shall be construed accordingly.

(9)Any reference in this section to “assignment” shall be construed in Scotland as a reference to assignation.

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Amendments (Textual)

F76S. 11(2)(a)(b) substituted for words (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 5(2) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F77Words in s. 11 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F79S. 11(3) repealed (1.2.2001) by 2000 c. 38, ss. 216, 274, Sch. 17 para. 5(3), Sch. 31 Pt. IV (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F80Words in s. 11(4) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 5(4) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modification of licencesE+W+S

12 Modification by agreement.E+W+S

(1)Subject to the following provisions of this section, [F82the Office of Rail Regulation] may modify the conditions of a licence if the holder of the licence consents to the modifications.

(1A)F83. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(1B)F83. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(1C)F83. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)Before making modifications [F84under this section] , [F82the Office of Rail Regulation] shall give notice—

(a)stating that [F85it] proposes to make the modifications and setting out their effect,

(b)stating the reasons why [F85it] proposes to make the modifications, and

(c)specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall [F86, before making the modifications,] consider any representations or objections which are duly made and not withdrawn.

(3)A notice under subsection F87. . . (2) above shall be given—

(a)by publishing the notice in such manner as [F88F89. . . the Regulator,] considers appropriate for the purpose of bringing the notice to the attention of persons likely to be affected by the making of the modifications; and

(b)by serving a copy of the notice on the holder of the licence.

(4)F90. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F82Words in s. 12 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F83S. 12 (1A)-(1C) repealed (24.7.2005) by Railways Act 2005 (c. 14), ss. 1, 59, 60, Sch. 1 para. 5(1) {Sch. 13 Pt. I} (with s. 14(4)(5), Sch. 11 para. 11(2)); S.I. 2005/1909 {art. 2}, Sch.

F84Words in s. 12(2) substituted (24.7.2005) by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 5(2); S.I. 2005/1909 {art. 2}, Sch.

F85Words in s. 12 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(b) Table}; S.I. 2004/827, art. 4(g)

F86Words in s. 12(12) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 6(3)(b) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F88Words in s. 12(3) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 6(4)(b) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

13 Modification references to the Monopolies Commission.E+W+S

(1)[F91the Office of Rail Regulation] may make to the Monopolies and Mergers Commission (in this Act referred to as the [F92Competition Commission]) a reference which is so framed as to require the Commission to investigate and report on the questions—

(a)whether any matters which—

(i)relate to the provision of any railway services by means of a railway asset, or railway assets of a class or description, whose operator acts as such by virtue of a licence, and

(ii)are specified in the reference,

operate, or may be expected to operate, against the public interest; and

(b)if so, whether the effects adverse to the public interest which those matters have or may be expected to have could be remedied or prevented by modifications of the conditions of the licence.

(1A)F93. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(1B)F93. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(1C)F93. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)[F91the Office of Rail Regulation] may, at any time, by notice given to the [F92Competition Commission]vary a reference under this section by adding to the matters specified in the reference or by excluding from the reference some or all of the matters so specified; and on receipt of any such notice the Commission shall give effect to the variation.

(3)[F91the Office of Rail Regulation] may specify in a reference under this section, or a variation of such a reference, for the purpose of assisting the [F92 CompetitionCommission]in carrying out the investigation on the reference—

(a)any effects adverse to the public interest which, in [F94its] opinion, the matters specified in the reference or variation have or may be expected to have; and

(b)any modifications of the conditions of the licence by which, in [F94its] opinion, those effects could be remedied or prevented.

(4)As soon as practicable after making a reference under this section or a variation of such a reference, [F91the Office of Rail Regulation]

(a)shall serve a copy of the reference or variation on the holder of the licence; and

(b)shall publish particulars of the reference or variation in such manner as [F95it] considers appropriate for the purpose of bringing the reference or variation to the attention of persons likely to be affected by it.

(5)[F91the Office of Rail Regulation] shall also send a copy of a reference under this section, or a variation of such a reference, to the Secretary of State; and if, before the end of the period of 28 days beginning with the day on which the Secretary of State receives the copy of the reference or variation, the Secretary of State directs the [F92Competition Commission] not to proceed with the reference or, as the case may require, not to give effect to the variation, the Commission shall comply with the direction.

(6)It shall be the duty of [F91the Office of Rail Regulation] , for the purpose of assisting the [F92Competition Commission] in carrying out an investigation on a reference under this section, to give to the Commission—

(a)any information in [F96the possession of [F91the Office of Rail Regulation]] which relates to matters falling within the scope of the investigation and—

(i)is requested by the Commission for that purpose; or

(ii)is information which, in [F96the opinion of [F91the Office of Rail Regulation]], it would be appropriate for that purpose to give to the Commission without any such request; and

(b)any other assistance which the Commission may require, and which it is within [F96the power of [F91the Office of Rail Regulation]] to give, in relation to any such matters;

and the Commission, for the purpose of carrying out any such investigation, shall take account of any information given to them for that purpose under this subsection.

(7)In determining for the purposes of this section whether any particular matter operates, or may be expected to operate, against the public interest, the [F92 Competition Commission] shall have regard to the matters as respects which duties are imposed on F97. . . [F98the Office of Rail Regulation] by section 4 above.

(8)F99. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8A)F99. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)Nothing in this section applies in relation to any term of a licence to the extent that it makes provision for the revocation or surrender of the licence.

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Amendments (Textual)

F92 Words in s. 13(1)-(3)(5)-(7) substituted (1.4.1999) by S.I. 1999/506, art. 33(a)(b)

F94Words in s. 13(3) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 7(5) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F95Words in s. 13(4) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 7(6) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F96Words in s. 13(6) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 7(8) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F97Words in s. 13(7) 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)

F98Words in s. 13 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

Modifications etc. (not altering text)

[F10013A References under section 13: time limitsE+W+S

(1)Every reference under section 13 above shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.

(2)A report of the Competition Commission on a reference under section 13 above shall not have effect (and no action shall be taken in relation to it under section 15 below) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by [F101the Office of Rail Regulation] under subsection (3) below.

(3)[F101the Office of Rail Regulation] may, if it has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.

(4)No more than one extension is possible under subsection (3) above in relation to the same reference.

(5)[F101the Office of Rail Regulation] shall, in the case of an extension made by it under subsection (3) above—

(a)publish that extension in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and

(b)send a copy of what has been published by it under paragraph (a) above to the holder of the licence.]

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Amendments (Textual)

Modifications etc. (not altering text)

F10213B References under section 13: application of Enterprise Act 2002E+W+S

(1)The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3) below, for the purposes of references under section 13 above as they apply for the purposes of references under that Part—

(a)section 109 (attendance of witnesses and production of documents etc.);

(b)section 110 (enforcement of powers under section 109: general);

(c)section 111 (penalties);

(d)section 112 (penalties: main procedural requirements);

(e)section 113 (payments and interest by instalments);

(f)section 114 (appeals in relation to penalties);

(g)section 115 (recovery of penalties); and

(h)section 116 (statement of policy).

(2)Section 110 shall, in its application by virtue of subsection (1) above, have effect as if—

(a)subsection (2) were omitted; and

(b)in subsection (9) the words from “or section" to “section 65(3))" were omitted.

(3)Section 111(5)(b)(ii) shall, in its application by virtue of subsection (1) above, have effect as if—

(a)for the words “published (or, in the case of a report under section 50 or 65, given)" there were substituted “made";

(b)for the words “published (or given)", in both places where they appear, there were substituted “made"; and

(c)the words “by this Part" were omitted.

(4)Section 117 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the Competition Commission in connection with references under section 13 as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words [F103 “the OFT, OFCOM,”] and “or the Secretary of State" were omitted.

(5)Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 117 of that Act (including, in particular, provisions relating to offences and the making of orders), shall, for the purposes of the application of those sections by virtue of subsection (1) or (4) above, have effect in relation to those sections as applied by those subsections.

(6)Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those subsections.

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Amendments (Textual)

F103Words in s. 13B(4) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389, 411(2)(3), Sch. 16 para. 4(2) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1) (subject to art. 3(3), Sch. 1)

Modifications etc. (not altering text)

14 Reports on modification references.E+W+S

(1)In making a report on a reference under section 13 above, the [F104Competition Commission]

(a)shall include in the report definite conclusions on the questions comprised in the reference together with such an account of their reasons for those conclusions as in their opinion is expedient for facilitating a proper understanding of those questions and of their conclusions;

(b)where they conclude that any of the matters specified in the reference operate, or may be expected to operate, against the public interest, shall specify in the report the effects adverse to the public interest which those matters have or may be expected to have; and

(c)where they conclude that any adverse effects so specified could be remedied or prevented by modifications of the conditions of the licence, shall specify in the report modifications by which those effects could be remedied or prevented.

[F105(1A)For the purposes of sections 15 to 15B below, a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.

(1B)If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under section 13 above as the conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.]

(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F106(3)For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under section 13 above.

(3A)In making any report on a reference under section 13 above the Competition Commission must have regard to the following considerations before disclosing any information.

(3B)The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest.

(3C)The second consideration is the need to exclude from disclosure (so far as practicable)—

(a)commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

(b)information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual’s interests.

(3D)The third consideration is the extent to which the disclosure of the information mentioned in subsection (3C)(a) or (b) above is necessary for the purposes of the report.]

(4)A report of [F104 the Competition Commission] on a reference under section 13 above shall be made to [F107the Office of Rail Regulation] .

(5)Subject to subsection (6) below, [F107the Office of Rail Regulation]

(a)shall, on receiving such a report, send a copy of it to the holder of the licence to which the report relates and to the Secretary of State; and

(b)shall, not less than 14 days after that copy is received by the Secretary of State, publish the report in such manner as [F108it] considers appropriate for bringing the report to the attention of persons likely to be affected by it.

(5A)F109. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)If it appears to the Secretary of State that the publication of any matter in such a report would be against the public interest or the commercial interests of any person, he may, before the end of the period of 14 days mentioned in paragraph (b) of subsection (5) above, direct [F110the Office of Rail Regulation] to exclude that matter from every copy of the report to be published by virtue of that paragraph.

(7)Nothing in this section applies in relation to any term of a licence to the extent that it makes provision for the revocation or surrender of the licence.

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Amendments (Textual)

F104Words in s. 14(1)-(2) substituted (1.4.1999) by S.I. 1999/506, art. 33(b)

F108Words in s. 14(5) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 8(3) (with Sch. 28 paras. 2(5), 17); 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)

15 Modification following report.E+W+S

(1)[F111This section applies where] a report of the [F112 Competition Commission] on a reference under section 13 above—

(a)includes conclusions to the effect that any of the matters specified in the reference operate, or may be expected to operate, against the public interest,

(b)specifies effects adverse to the public interest which those matters have or may be expected to have,

(c)includes conclusions to the effect that those effects could be remedied or prevented by modifications of the conditions of the licence, and

(d)specifies modifications by which those effects could be remedied or prevented,

F113. . .

[F114(1A)Where the report is made to [F115the Office of Rail Regulation][F116it] shall, subject to the following provisions of this section and to section 15A below, make such modifications of the conditions of the licence as appear to [F116it] requisite for the purpose of remedying or preventing the adverse effects specified in the report.

(1B)F117. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(2)Before making [F118, or requiring the making of,] modifications under this section, [F115the Office of Rail Regulation], F119. . . , shall have regard to the modifications specified in the report.

(3)Before making modifications under [F120subsection (1A) above], [F115the Office of Rail Regulation] shall give notice—

(a)stating that [F116it] proposes to make the modifications and setting out their effect,

(b)stating the reasons why [F116it] proposes to make the modifications, and

(c)specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(3A)F121. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)A notice under subsection (3) F122. . . above shall be given—

(a)by publishing the notice in such manner as [F115the Office of Rail Regulation], F122. . . considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by the making of the modifications; and

(b)by serving a copy of the notice on the holder of the licence.

[F123(4A)Where (after considering any representations or objections which are duly made and not withdrawn) [F115the Office of Rail Regulation]F119. . . proposes to make or require the making of modifications under this section, F124. . . it shall give notice to the Competition Commission—

(a)setting out the modifications [F116it] proposes to make or F125. . . require to be made; and

(b)stating the reasons why [F116it] proposes to make the modifications or F125. . . require the making of them.

(4B)[F115the Office of Rail Regulation]F119. . . shall include with the notice under subsection (4A) above a copy of any representations and objections which have been considered.

(4C)If the period within which a direction may be given by the Competition Commission under section 15A below expires without such a direction being given, [F115the Office of Rail Regulation]F119. . . shall make, or require the making of, the modifications set out in the notice given under subsection (4A) above.

(4D)If a direction is given by the Competition Commission under section 15A(1)(b) below, [F115the Office of Rail Regulation]F119. . . shall make, or require the making of, such of those modifications as are not specified in the direction.]

(5)F126. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)Nothing in this section applies in relation to any term of a licence to the extent that it makes provision for the revocation or surrender of the licence.

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Amendments (Textual)

F111Words in s. 15(1) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 9(2)(a) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F112Words in s. 15(1) substituted (1.4.1999) by S.I. 1999/506, art. 33(b)

F113Words in s. 15(1) repealed (1.2.2001) by 2000 c. 38, ss. 216, 274, Sch. 17 para. 9(2)(b), Sch. 31 Pt. IV (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F114S. 15(1A)(1B) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 9(3) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F115Words in s. 15 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F116Word in s. 15 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(b) Table}; S.I. 2004/827, art. 4(g)

F118Words in s. 15(2) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 9(4)(a) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F120Words in s. 15(3) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 9(5) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F122Words in s. 15(4) repealed (24.7.2005) by Railways Act 2005 (c. 14), ss. 1, 59(6), 60(2), Sch. 1 para. 9(c) {Sch. 13 Pt. 1} (with s. 14(4)(5), Sch. 1 para. 10, Sch. 11 para. 11(2)); S.I. 2005/1909, art. 2, Sch.

F123S. 15(4A)-(4D) inserted (1.2.2001) by 2000 c. 38, s. 242(1); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F124Words in s. 15(4A) omitted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 7(a) Table}; S.I. 2004/827, art. 4(g)

F125Words in s. 15(4A) omitted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 7(b) Table}; S.I. 2004/827, art. 4(g)

Modifications etc. (not altering text)

[F12715A Competition Commission’s power to veto modifications following report.E+W+S

(1)The Competition Commission may, within the period of four weeks beginning with the day on which they are given notice under section 15(4A) above, give a direction to [F128the Office of Rail Regulation]F129. . . —

(a)not to make, or require the making of, the modifications set out in the notice; or

(b)not to make such of those modifications as are specified in the direction.

(2)The Secretary of State may, if an application is made to him by the Competition Commission within that period of four weeks, extend the period within which a direction may be given under this section to one of six weeks beginning with the day on which the Competition Commission are given notice under section 15(4A) above.

(3)The Competition Commission may give a direction under this section only if the modifications to which it relates do not appear to them requisite for the purpose of remedying or preventing the adverse effects specified in their report on the reference under section 13 above.

(4)If the Competition Commission give a direction under this section, they shall give notice—

(a)setting out the modifications contained in the notice given under section 15(4A) above;

(b)setting out the direction; and

(c)stating the reasons why they are giving the direction.

(5)A notice under subsection (4) above shall be given—

(a)by publishing the notice in such manner as the Competition Commission consider appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by the direction; and

(b)by serving a copy of the notice on the holder of the licence.]

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Amendments (Textual)

F127S. 15A inserted (1.2.2001) by 2000 c. 38, s. 242(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F128Words in s. 15A substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

Modifications etc. (not altering text)

F13015B Making of modifications by Competition Commission.E+W+S

(1)If the Competition Commission give a direction under section 15A above, they shall themselves make such modifications of the conditions of the licence as appear to them requisite for the purpose of remedying or preventing—

(a)the adverse effects specified in their report on the reference under section 13 above; or

(b)such of those adverse effects as would not be remedied or prevented by the modifications made by [F131the Office of Rail Regulation] , F132. . . , under section 15(4D) above.

(2)In exercising the function conferred by subsection (1) above, the Competition Commission shall have regard to the matters as respects which duties are imposed on [F131the Office of Rail Regulation] by section 4 above.

(3)Before making modifications under this section, the Competition Commission shall give notice—

(a)stating that they propose to make the modifications and setting out their effect,

(b)stating the reasons why they propose to make the modifications, and

(c)specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(4)A notice under subsection (3) above shall be given—

(a)by publishing the notice in such manner as the Competition Commission consider appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by the making of the modifications; and

(b)by serving a copy of the notice on the holder of the licence.

(5)As soon as practicable after making any modifications under this section, the Competition Commission shall send a copy of those modifications to [F131the Office of Rail Regulation] , [F133the Authority and the Health and Safety Executive] .

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Amendments (Textual)

F130S. 15B inserted (1.2.2001) by 2000 c. 38, s. 242(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F131Words in s. 15B substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F133Words in s. 15B(5) repealed (24.7.2005 for certain purposes and otherwise prosp.) by Railways Act 2005 (c. 16), ss. 59, 60, Sch. 13 Pt. 1 (with s. 14(4)(5), Sch. 11 para. 11(2)); S.I. 2005/1909, art. 2, Sch.

Modifications etc. (not altering text)

F13415C Sections 15A and 15B: supplementary.E+W+S

[F135(1)For the purposes of the law relating to defamation, absolute privilege attaches to any notice under section 15A(4) or 15B(3) above.

(2)In giving any notice under section 15A(4) or 15B(3) above, the Competition Commission must have regard to the following considerations before disclosing any information.

(2A)The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest.

(2B)The second consideration is the need to exclude from disclosure (so far as practicable)—

(a)commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

(b)information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual’s interests.

(2C)The third consideration is the extent to which the disclosure of the information mentioned in subsection (2B)(a) or (b) above is necessary for the purposes of the notice.

(2D)The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2E) and (2F) below, for the purposes of any investigation by the Competition Commission for the purposes of the exercise of its functions under section 15A or 15B above, as they apply for the purposes of any investigation on references under that Part—

(a)section 109 (attendance of witnesses and production of documents etc.);

(b)section 110 (enforcement of powers under section 109: general);

(c)section 111 (penalties);

(d)section 112 (penalties: main procedural requirements);

(e)section 113 (payments and interest by instalments);

(f)section 114 (appeals in relation to penalties);

(g)section 115 (recovery of penalties); and

(h)section 116 (statement of policy).

(2E)Section 110 shall, in its application by virtue of subsection (2D) above, have effect as if—

(a)subsection (2) were omitted;

(b)in subsection (4), for the words “the publication of the report of the Commission on the reference concerned" there were substituted “the sending of a copy to [F136the Office of Rail Regulation] under section 15B(5) of the Railways Act 1993 of the modifications made by the Commission in connection with the reference concerned or, if no direction has been given by the Commission under section 15A(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which it was possible to give such a direction within the permitted period"; and

(c)in subsection (9) the words from “or section" to “section 65(3))" were omitted.

(2F)Section 111(5)(b) shall, in its application by virtue of subsection (2D) above, have effect as if for sub-paragraph (ii) there were substituted—

“(ii)if earlier, the day on which a copy of the modifications made by the Commission in connection with the reference concerned is sent to [F136the Office of Rail Regulation] under section 15B(5) of the Railways Act 1993 or, if no direction is given by the Commission under section 15A(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which such a direction may be given within the permitted period. ".

(2G)Section 117 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the Competition Commission in connection with the exercise of its functions under section 15A and 15B above as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words [F137 “the OFT, OFCOM,”] and “or the Secretary of State" were omitted.

(2H)Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 117 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (2D) or (2G) above, have effect in relation to those sections as applied by virtue of those subsections.

(2I)Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those subsections.]

(2)The provisions are—

(a)sections 82(1) and (2) (general provisions as to reports), 85 (attendance of witnesses and production of documents) and 93B (false or misleading information) of the 1973 Act;

(b)Part II of Schedule 7 to the M1Competition Act 1998 (performance of the Competition Commission’s general functions); and

(c)section 24 of the 1980 Act (modification of provisions about performance of such functions).

(3)For the purpose of assisting the Competition Commission in exercising their functions under sections 15A and 15B above, [F136the Office of Rail Regulation]F138. . . shall F138. . . give to the Competition Commission any information in F139. . . its possession which relates to matters relevant to the exercise of those functions and—

(a)is requested by the Competition Commission for that purpose; or

(b)is information which, in F139. . . its opinion, it would be appropriate for that purpose to give to the Competition Commission without any such request;

and any other assistance which the Competition Commission may require, and which it is within F139. . . its power to give, in relation to any such matters.

(4)For the purpose of exercising those functions, the Competition Commission shall take account of any information given to them for that purpose under subsection (3) above.

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Amendments (Textual)

F134S. 15C inserted (1.2.2001) by 2000 c. 38, s. 242(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F135S. 15C(1)-(2I) substituted for s. 15C(1)(2) (20.6.2003) by 2002 c. 40, ss. 278, 279, Sch. 25 para. 30(6); S.I. 2003, {art. 2(1)}, Sch.

F136Words in s. 15C substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F137Words in s. 15(2G) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 389, 411(2)(3), Sch. 16 para. 4(3) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1) (subject to art. 3(3), Sch. 1

Modifications etc. (not altering text)

Marginal Citations

16 Modification by order under other enactments.E+W+S

[F140(1)Where the OFT, the Competition Commission or (as the case may be) the Secretary of State (in this section “the relevant authority”) makes a relevant order, the order may also provide for the modification of the conditions of a licence to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order.

(2)In subsection (1) above “relevant order” means—

(a)an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where—

(i)one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the supply of services relating to railways; or

(ii)one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the supply of services relating to railways; or

(b)an order under section 160 or 161 of that Act where the feature, or combination of features, of the market in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to the supply of services relating to railways.]

(3)As soon as practicable after making any modifications under this section, the [F141relevant authority] shall send a copy of those modifications to [F142the Office of Rail Regulation], [F143the Authority and to the Health and Safety Executive] .

(4)Nothing in this section applies in relation to any term of a licence to the extent that it makes provision for the revocation or surrender of the licence.

[F144(5)Expressions used in subsection (2) above and in Part 3 or (as the case may be) Part 4 of the Enterprise Act 2002 have the same meanings in that subsection as in that Part; and in subsection (2) above “services relating to railways” has the same meaning as in section 67(2A) of this Act.]

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Amendments (Textual)

F142Words in s. 16 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F143Words in s. 16(3) repealed (24.7.2005 for certain purposes and otherwise prosp.) by Railways Act 2005 (c. 16), ss. 59, 60, Sch. 13 Pt. 1 (with s. 14(4)(5), Sch. 11 para. 11(2)); S.I. 2005/1909, art. 2, Sch.

Modifications etc. (not altering text)

F145 Directions to provide, improve or develop railway facilitiesE+W+S

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Amendments (Textual)

F145S. 16A cross-heading inserted (15.10.2005) by 2000 c. 38, ss. 223, 275; S.I. 2005/2862, art. 3

F14616A Provision, improvement and development of railway facilities.E+W+S

(1)[F147the Office of Rail Regulation] may, on an application—

(a)made by the [F148appropriate facilities authority] , or

(b)made by any other person with the consent of the [F148appropriate facilities authority] ,

give to the operator of a network, station or light maintenance depot a direction to provide a new railway facility if [F147the Office of Rail Regulation] considers him to be an appropriate person to provide the new railway facility.

(2)[F147the Office of Rail Regulation] may, on an application—

(a)made by the [F148appropriate facilities authority] , or

(b)made by any other person with the consent of the [F148appropriate facilities authority] ,

give to a person who has an estate or interest in, or right over, an existing railway facility a direction to improve or develop the railway facility if [F147the Office of Rail Regulation] considers him to be an appropriate person to improve or develop the railway facility.

(3)The [F149consent of the appropriate facilities authority] to the making by any other person of an application under subsection (1) or (2) above may be given subject to compliance with conditions (and may be withdrawn if any condition is not complied with before [F147the Office of Rail Regulation] decides whether to give the direction).

[F150(3A)In this section and sections 16B to 16G below `the appropriate facilities authority'—

(a)in relation to facilities in Scotland, means the Scottish Ministers; and

(b)in relation to any other facilities, means the Secretary of State.]

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Amendments (Textual)

F147S. 16A: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F15116B Exemption of railway facilities from section 16A.E+W+S

(1)The [F152appropriate facilities authority] may, after consultation with [F153the Office of Rail Regulation] , by order grant exemption from subsection (1) or (2) of section 16A above (or from both of those subsections) in respect of such railway facilities as may be specified in the order, but subject to compliance with such conditions (if any) as may be so specified.

(2)An exemption under subsection (1) above may be granted in respect of—

(a)railway facilities of a particular class or description, or

(b)a particular railway facility,

or in respect of part only of railway facilities of a particular class or description or a particular railway facility.

(3)An exemption under subsection (1) above may be granted generally, to persons of a particular class or description or to a particular person.

(4)If a person fails to comply with any condition subject to compliance with which an exemption was granted, the [F154appropriate facilities authority] may give a direction declaring that the exemption is revoked, so far as relating to that person, to such extent and as from such date as may be specified in the direction.

(5)Subject to subsection (4) above, an exemption, unless previously revoked in accordance with any term contained in the exemption, shall continue in force for such period as may be specified in, or determined by or under, the exemption.

(6)Exemptions may make different provision, or be granted subject to compliance with different conditions, for different cases.

[F155(7)A statutory instrument containing an order made under this section by the Scottish Ministers shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.]

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Amendments (Textual)

F151S. 16B inserted (15.10.2005) by 2000 c. 38, ss. 223, 275(1); S.I. 2005/2862,{art. 3}

F153S. 16B: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F15616C Making of applications for directions.E+W+S

(1)An application for a direction under section 16A above must be made to [F157the Office of Rail Regulation] in writing.

(2)The application must—

(a)specify the person to whom the direction would be given;

(b)state what it would require him to do; and

(c)give the applicant’s reasons for considering that person to be an appropriate person to do what the direction would require him to do.

(3)The applicant may at any time vary what the direction would require that person to do by giving to [F157the Office of Rail Regulation] notice in writing of the variation; but if the applicant is a person other than the [F158appropriate facilities authority] such a notice may only be given with the consent of the Authority.

(4)The application or notice of a variation may be accompanied by any written representations which the applicant wishes to make in relation to the direction.

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Amendments (Textual)

F157S. 16C: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F15916D Procedure for considering applications.E+W+S

(1)When [F160the Office of Rail Regulation] has received the application or notice of a variation, [F161it]

(a)send a copy to the person specified in the application, the [F162appropriate facilities authority] (if it is not the applicant) and any other persons who [F160the Office of Rail Regulation] considers ought to be sent one; and

(b)invite them to make written representations within a period specified in the invitation.

(2)If the person specified in the application makes representations that he is not an appropriate person to do what the direction would require him to do, [F160the Office of Rail Regulation] must decide that issue in advance of considering any other matters which may be relevant in deciding whether to give the direction.

(3)If that person makes such representations but [F160the Office of Rail Regulation] decides that he is an appropriate person to do what the direction would require him to do, [F160the Office of Rail Regulation] must—

(a)notify him of that decision; and

(b)invite him to make written representations within a period specified in the invitation about any other matters which may be relevant in deciding whether to give the direction.

(4)[F160the Office of Rail Regulation] must—

(a)send the applicant a copy of any representations received by [F161it] in response to any invitation under subsection (1) or (3) above; and

(b)invite him to make further written representations within a period specified in the invitation.

(5)Subject to subsection (6) below, [F160the Office of Rail Regulation] may substitute as the applicant any other person if—

(a)the applicant,

(b)the other person, and

(c)the [F162appropriate facilities authority] (if it is neither the applicant nor the other person),

consent to the substitution.

(6)The applicant may, by giving notice in writing to [F160the Office of Rail Regulation] , withdraw or suspend the application at any time before [F160the Office of Rail Regulation] decides whether to give the direction.

(7)[F160the Office of Rail Regulation] may direct—

(a)the person specified in the application,

(b)the applicant, or

(c)any other person (apart from the [F162appropriate facilities authority] ),

to provide him with any information required by him in order to decide whether to give the direction.

(8)If a person fails to comply with a direction under subsection (7) above, the High Court or the Court of Session may, on the application of [F160the Office of Rail Regulation] make such order as it thinks fit for requiring the failure to be made good.

(9)Such an order may provide that all the costs or expenses of and incidental to the application shall be borne by—

(a)the person who failed to comply; or

(b)in the case of a company or other association, any officers who are responsible for the failure to comply.

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Amendments (Textual)

F159S. 16D inserted (15.10.2005) by 2000 c. 38, ss. 223, 275; S.I. 2005/2862, art. 3

F160S. 16D: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F161S. 16D: word in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(b) Table}; S.I. 2004/827, art. 4(g)

F16316E Decisions on applications: adequate reward.E+W+S

(1)[F164the Office of Rail Regulation]may only give a direction to a person under section 16A above to provide, improve or develop a railway facility if he is satisfied that the person will be adequately rewarded for providing, improving or developing the railway facility in accordance with the direction.

(2)In considering whether he is so satisfied [F164the Office of Rail Regulation] shall take into account (in particular)—

(a)any receipts obtained or likely to be obtained by the person (from the [F165appropriate facilities authority] , passengers, operators of railway services or any other persons) in connection with, or as a result of, the provision, improvement or development of the railway facility; and

(b)any other benefit obtained or likely to be obtained by him in consequence of its provision, improvement or development.

(3)Representations made by the applicant for a direction—

(a)under section 16C(4) above, or

(b)in response to an invitation under section 16D(4) above,

may, in particular, include representations as to matters which he considers [F164the Office of Rail Regulation] should take into account in deciding whether the person to whom the direction would be given would be adequately rewarded for doing what it would require him to do.

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Amendments (Textual)

F163S. 16E inserted (15.10.2005) by 2000 c. 38, ss. 223, 275(1); S.I 2005/2862, {art. 3}

F164S. 16E: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F16616F Other provisions about decisions.E+W+S

(1)If [F167the Office of Rail Regulation] does not consider it right to give a direction under section 16A above in the terms applied for (or to reject the application), [F168it] may give a direction under that section in modified terms.

(2)[F167the Office of Rail Regulation] may include supplementary provisions in any direction under section 16A above, including (in particular)—

(a)provision adding detail (for instance, as to the time by which, or standard to which, the person to whom it is given is to do anything which it requires him to do); and

(b)provision imposing requirements on the applicant (for instance, to make arrangements for rewarding the person to whom the direction is given or to make payments to him).

(3)Before giving a direction under section 16A above which is in modified terms or includes supplementary provisions, [F167the Office of Rail Regulation] shall—

(a)notify [F169its] intention to give a direction to the applicant, the [F170appropriate facilities authority] (if it is not the applicant) and any other persons who the Regulator considers ought to be notified; and

(b)invite them to make written representations within a period specified in the invitation;

and if the applicant makes representations that the direction should not be given, [F167the Office of Rail Regulation] shall not give it.

(4)Whatever [F167the Office of Rail Regulation]’s decision on an application [F168it] shall notify the decision to—

(a)the person specified in the application;

(b)the applicant; and

(c)any other persons who [F168it] considers ought to be notified.

(5)[F167the Office of Rail Regulation] may direct the person specified in the application or the applicant to pay to—

(a)the other of those persons, or

(b)any other person directed to provide information under section 16D(7) above,

any such amount as [F168it] considers appropriate in respect of costs incurred in connection with the application.

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Amendments (Textual)

F167S. 16F: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F168S. 16F: word in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(b) Table}; S.I. 2004/827, art. 4(g)

F169S. 16F: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(c) Table}; S.I. 2004/827, art. 4(g)

F17116G Directions: compliance, variation and revocation.E+W+S

(1)A person shall not be regarded as failing to comply with a direction under section 16A above if he has done everything which it is reasonably practicable to do in order to comply with the direction.

(2)If a person is unable to comply with such a direction because he does not have the necessary powers or rights (including rights over land), he shall not be taken to have done everything which it is reasonably practicable to do in order to comply with the direction unless he has done everything which it is reasonably practicable to do in order to obtain those powers or rights.

(3)A direction under section 16A above may only be revoked or varied by [F172the Office of Rail Regulation]

(a)on the application of the person to whom the direction was given, the applicant for the direction or the Authority (if it was not the applicant); and

(b)after consultation with the other persons with power to apply for a revocation or variation.

(4)Such a direction may only be varied on an application by the applicant for the direction or the [F173appropriate facilities authority] if [F172the Office of Rail Regulation] is satisfied that the person to whom the direction was given will be adequately rewarded for providing, improving or developing the railway facility in accordance with the varied direction, taking into account (in particular) the matters specified in section 16E(2) above.

(5)[F172the Office of Rail Regulation] may grant an application for the variation or revocation of a direction under section 16A above by the applicant for the direction or the [F173appropriate facilities authority] on condition that he or it secures that any such compensation as [F172the Office of Rail Regulation] may specify is paid to the person to whom the direction was given in respect of any liabilities incurred, or other things done, by him in complying with the direction.

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Amendments (Textual)

F172S. 16G: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F17416H Code of practice.E+W+S

(1)[F175the Office of Rail Regulation] shall prepare, and from time to time revise, a code of practice supplementing sections 16A to 16G above and shall publish it in such manner as [F176it] considers appropriate.

(2)[F175the Office of Rail Regulation] shall have regard to the code of practice in the exercise of [F177its] functions under those sections.

(3)The code of practice may (in particular)—

(a)set out minimum periods to be specified in invitations to make representations;

(b)include provision about requesting the provision of information prior to giving a direction under section 16D(7) above;

(c)specify principles according to which directions to pay costs are to be given under section 16F(5) above; and

(d)make provision about the consultation required by section 16G(3)(b) above.

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Amendments (Textual)

F175S. 16H: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F176S. 16H: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(b) Table}; S.I. 2004/827, art. 4(g)

F177S. 16H: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(c) Table}; S.I. 2004/827, art. 4(g)

F17816I Supplementary.E+W+S

(1)References in sections 16A to 16H above and this section to a railway facility include part of a railway facility.

(2)Nothing in any of those sections or a direction under section 16A above—

(a)limits any power of [F179the Office of Rail Regulation] under any other provision of this Act; or

(b)affects any obligation to provide a new railway facility, or to improve or develop an existing railway facility, arising otherwise than from such a direction.

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Amendments (Textual)

F179S. 16I: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

Access agreementsE+W+S

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

(1)[F180the Office of Rail Regulation] 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 F181. . . ; F182. . . [F183or]

(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; F184. . .

(d)F184. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 [F185the Secretary of State] 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 [F185the Secretary of State] ;

(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 [F186Authority].

(4)Any reference in this section to a person operating a network, station or light maintenance depot "on behalf of the [F187Secretary of State] is a reference to his operating the network, station or light maintenance depot in pursuance of any agreement or other arrangements made by the [F188Secretary of State or the Scottish Ministers] for the purpose of performing a duty imposed upon [F189him or them] , or exercising a power conferred upon [F189him or them] , under or by virtue of this Part [F190or Part 4 of the Railways Act 2005 (network modifications etc.)] to secure the operation of that network, station or light maintenance depot.

(5)Nothing in this section authorises [F180the Office of Rail Regulation] 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;

  • [F191but 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;

  • F192. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • F192. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • F192. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

[F193(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.

F194(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F180Words in s. 17 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F182Word in s. 17(1)(b) deleted (27.6.1998) by virtue of S.I. 1998/1340, reg. 21(5)

F185Words in s. 17 substituted (1.12.2006) by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 12(1); S.I. 2006/2911 {art. 2}, Sch. (subject to the transitional and saving provisions in arts. 3-7)

F186Words 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))

F187Words in s. 17(4) substituted (1.12.2006) by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 12(2)(a); S.I. 2006/2911, art. 2, Sch. (subject to the transitional and saving provisions in arts. 3-7)

F188Words in s. 17(4) substituted (1.12.2006) by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 12(2)(b); S.I. 2006/2911, art. 2, Sch. (subject to the transitional and saving provisions in arts. 3-7)

F189Word in s. 17(4) substituted (1.12.2006) by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 12(2)(c); S.I. 2006/2911, art. 2, Sch. (subject to the transitional and saving provisions in arts. 3-7)

F190Words in s. 17(4) inserted (1.12.2006) by Railways Act 2005 (c. 14), ss. 54, 60, Sch. 11 para. 3(a); S.I. 2006/2911, art. 2, Sch. (subject to the transitional and saving provisions in arts. 3-7)

F191S. 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)

F192Definitions in s. 17(7) omitted (28.11.2005) by virtue of The Railways Infrastructure (Access and Management) Regulations 2005 (S.I. 2005/3049, reg. 2(4), Sch. 1 para. 4(a)(iii)

F193S. 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)

F194S. 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)

C21S. 17(1) restricted (18.12.1996) by 1996 c. 61, s. 17(1)

18 Access agreements: contracts requiring the approval of the Regulator.E+W+S

(1)A facility owner shall not enter into an access contract to which this section applies unless—

(a)he does so pursuant to directions under section 17 above; F195. . .

(b)[F196the Office of Rail Regulation] has approved the terms of the access contract and the facility owner enters into the contract pursuant to directions under this section; [F197or

(c)the access contract is of a class or description specified in a general approval given by [F196the Office of Rail Regulation] ;]

and any access contract to which this section applies [F198shall be void unless one of the conditions in paragraphs (a) to (c) above is satisfied.]

(2)The access contracts to which this section applies are those under which the beneficiary obtains, or, in the case of an access contract conferring an access option, may obtain, (whether for himself alone or for himself and 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 subsections (3) and (4) below.

(3)This section does not apply to an access contract—

(a)if and to the extent that the railway facility to which the access contract relates is, by virtue of section 20 below, an exempt facility; F199. . .

(b)F199. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)In subsection (2) above—

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

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

(c)paragraph (c) does not extend to 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,

unless the purpose of entering into the access contract is to enable the beneficiary to operate on behalf of [F200the Secretary of State] 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,

unless the purpose of entering into the access contract is to enable the beneficiary to operate the station on behalf of [F200the Secretary of State] ;

(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,

unless the purpose of entering into the access contract is to enable the beneficiary to operate the light maintenance depot on behalf of [F200the Secretary of State] .

(5)In any case where—

(a)a facility owner and another person (the “other party") have agreed the terms on which they propose to enter into an access contract to which this section applies, but

(b)the circumstances are such that, by virtue of subsection (1)(b) above, those terms must be approved, and directions must be given, by the Regulator before the facility owner may enter into the proposed access contract,

it shall be for the facility owner to submit the proposed access contract to [F196the Office of Rail Regulation] for approval of its terms.

(6)If, on the submission of a proposed access contract pursuant to subsection (5) above, [F196the Office of Rail Regulation] approves its terms, [F201it] shall issue directions to the facility owner—

(a)requiring him to enter into the proposed access contract within such period as may be specified for the purpose in the directions; but

(b)releasing him from his duty to do so if the other party fails to enter into the proposed access contract within such period as may be specified for the purpose in the directions;

and [F196the Office of Rail Regulation] shall send a copy of the directions to the other party.

[F202(6A)The grounds on which [F196the Office of Rail Regulation] may reject, or approve subject to modifications, a proposed access contract submitted to [F201it] pursuant to subsection (5) above include that [F201it] considers that the use of the facility for which it provides might impede the provision of services—

(a)under a franchise agreement; or

(b)under an agreement entered into by [F200the Secretary of State] pursuant to [F203his] duty under section 30 below.]

(7)If, on the submission of a proposed access contract pursuant to subsection (5) above, [F196the Office of Rail Regulation] does not consider it appropriate to approve its terms without modification (or to reject it), [F201it] may, after consultation with the facility owner and the other party, issue directions to the facility owner—

(a)approving the terms of the proposed access contract, but subject to such modifications as may be specified in the directions; and

(b)requiring the facility owner to enter into the proposed access contract on those terms, as so modified; but

(c)releasing him from his duty to do so if either—

(i)the facility owner gives [F196the Office of Rail Regulation] notice of objection before the expiration of the period of fourteen days beginning with the day after that on which the directions are issued; or

(ii)the other party fails to enter into the proposed access contract, on the terms as modified under this subsection, before the date specified for the purpose in the directions;

and [F196the Office of Rail Regulation] shall send a copy of the directions to the other party.

[F204(7A)Where [F196the Office of Rail Regulation] gives or revokes a general approval under subsection (1)(c) above, [F201it] shall publish the approval or revocation in such manner as he considers appropriate.

(7B)The revocation of a general approval given under subsection (1)(c) above shall not affect the continuing validity of any access contract to which it applied.]

(8)In this section, “associate”, “the beneficiary”,F205. . . and “lease” have the same meaning as they have in section 17 above.

(9)The following provisions of section 17 above, that is to say—

(a)subsection (4),

[F206(aa)subsection (7A),]

(b)subsection (8)(a) and (b), and

(c)subsection (9),

apply for the purposes of this section as they apply for the purposes of that section; and the words following paragraph (b) of subsection (8) of that section apply in relation to subsection (2)(c) of this section as they apply in relation to subsection (2)(c) of that section.

(10)This section shall not prevent a facility owner from granting a lease of any land which consists of or includes the whole or any part of his railway facility.

F207(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F195Word in s. 18(1)(a) 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)

F196Words in s. 18 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F197S. 18(1)(c) and word “or" immediately preceding it inserted (1.2.2001) by 2000 c. 38, s. 230(1); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F198Words in s. 18(1) substituted (1.2.2001) by 2000 c. 38, s. 230(1); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F200Words in s.18 substituted (1.12.2006) by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 12(1); S.I. 2006/2911 {art. 2}, Sch. (subject to the transitional and saving provisions in arts. 3-7)

F201Word in s. 18 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(b) Table}; S.I. 2004/827, art. 4(g)

F202S. 18(6A) inserted (1.2.2001) by 2000 c. 38, s. 212(6)(with Sch. 28 paras. 3, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F203Word in s. 18(6A)(b) substituted (1.12.2006) by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 12(3); S.I. 2006/2911, art. 2, Sch. (subject to the transitional and saving provisions in arts. 3-7)

F204S. 18(7A)(7B) inserted (1.2.2001) by 2000 c. 38, s. 230(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F206S. 18(9)(aa) inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 22; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F207S. 18(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)

C23S. 18(1) excluded (18.12.1996) by 1996 c. 61, s. 17(2)(3)

19 Access agreements: contracts for the use, on behalf of [F208the Secretary of State], of installations comprised in a network.E+W+S

(1)[F209the Office of Rail Regulation] may, on the application of any person, give directions to an installation owner requiring him to enter into an installation access contract with the applicant for the purpose of enabling the beneficiary to obtain (whether for himself alone or for himself and, so far as may be applicable, associates of his) permission to use the installation owner’s network installation for the purpose of operating, on behalf of [F208the Secretary of State], the network in which the network installation is comprised.

(2)Directions shall not be given under subsection (1) above in the case of any network installation if and to the extent that, as a result of an obligation or duty owed by the installation owner which arose before the coming into force of this section, the consent of some other person is required by the installation owner before he may enter into the installation access contract.

(3)An installation owner shall not enter into an installation access contract to which this subsection applies unless—

(a)he does so pursuant to directions under subsection (1) above; F210. . .

(b)[F209the Office of Rail Regulation] has approved the terms of the installation access contract and the installation owner enters into the contract pursuant to directions given by virtue of subsection (5) below; [F211or

(c)the installation access contract is of a class or description specified in a general approval given by the Regulator;]

and any installation access contract to which this subsection applies [F212shall be void unless one of the conditions in paragraphs (a) to (c) above is satisfied.]

(4)The installation access contracts to which subsection (3) above applies are those under which the beneficiary obtains (whether for himself alone or for himself and associates of his) from an installation owner permission to use the installation owner’s network installation for the purpose of operating, on behalf of [F208the Secretary of State] , the network in which the network installation is comprised.

(5)Subsections (5) to (7) of section 18 above shall apply in relation to installation access contracts to which subsection (3) of this section applies as they apply in relation to access contracts to which that section applies, but with the following modifications, that is to say—

(a)for any reference to a facility owner there shall be substituted a reference to an installation owner;

(b)for any reference to an access contract to which that section applies there shall be substituted a reference to an installation access contract to which subsection (3) above applies;

(c)for the reference to subsection (1)(b) of that section there shall be substituted a reference to subsection (3)(b) of this section.

[F213(5A)Where [F209the Office of Rail Regulation] gives or revokes a general approval under subsection (3)(c) above, [F214it] shall publish the approval or revocation in such manner as [F214it] considers appropriate.

(5B)The revocation of a general approval given under subsection (3)(c) above shall not affect the continuing validity of any installation access contract to which it applied.]

(6)Nothing in this section—

(a)authorises [F209the Office of Rail Regulation] to give directions to an installation owner requiring him to grant a lease of the whole or any part of his network installation; or

(b)prevents an installation owner from granting a lease of any land which consists of or includes the whole or any part of his network installation.

(7)Any reference in this section to a person operating a network “on behalf of [F208the Secretary of State]” is a reference to his operating the network in pursuance of any agreement or other arrangements made by [F208the Secretary of State] for the purpose of performing a duty imposed upon him, or exercising a power conferred upon him, under or by virtue of this Part [F215or Part 4 of the Railways Act 2005 (network modifications etc.)] to secure the operation of that network.

(8)Any reference in this section to obtaining permission to use a network installation includes—

(a)a reference to obtaining, in connection with any such permission, power to obtain the provision of ancillary services relating to that network installation, whether the installation 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 installation 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;

and in paragraph (b) above “installation land” means the land which constitutes the network installation in question.

(9)In this Part—

  • installation access contract” means a contract under which—

    (a)

    a person (whether or not the applicant), and

    (b)

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

    obtains permission from an installation owner to use the installation owner’s network installation;

  • installation owner” means any person—

    (a)

    who has an estate or interest in, or right over, a network installation; and

    (b)

    whose permission to use that network installation is needed by another before that other may use it;

  • [F216but also includes a person before he becomes an installation owner;]

  • and any reference to an installation owner’s network installation is a reference to the network installation by reference to which he is an installation owner.

(10)In this section—

  • ancillary service” means any service which is necessary or expedient for giving full effect to any permission or right which a person may have to use a network installation;

  • the applicant” means the person making the application for directions under subsection (1) above;

  • associate” has the meaning given by section 17(7) above;

  • the beneficiary” means the person mentioned in paragraph (a) of the definition of “installation access contract” in subsection (9) above;

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

  • network installation” means any installation (other than track) which is comprised in a network.

(11)Any reference in this section to a network installation includes a reference to a part of a network installation [F217and to one which is proposed to be constructed or is in the course of construction.].

(12)Schedule 4 to this Act shall have effect with respect to applications for directions under subsection (1) above as it has effect with respect to applications for directions under section 17 above, but with the following modifications, that is to say—

(a)for any reference to an access contract, there shall be substituted a reference to an installation access contract;

(b)any reference to an application for directions under section 17 above shall be taken as a reference to an application for directions under subsection (1) above;

(c)for any reference to the facility owner, there shall be substituted a reference to the installation owner mentioned in subsection (1) above;

(d)for any reference to section 17 above (but not to any specific provision of that section) there shall be substituted a reference to this section.

F218(13). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F208Words in s. 19 substituted (1.12.2006) by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 12(1); S.I. 2006/2911 {art. 2}, Sch. (subject to the transitional and saving provisions in arts. 3-7)

F209Words in s. 19 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F210Words in s. 19(3) repealed (1.2.2001) by 2000 c. 38, s. 274, 275(1), 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)

F211S. 19(1)(c) and word “or" immediately preceding it inserted (1.2.2001) by 2000 c. 38, s. 230(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F212Words in s. 19(3) substituted (1.2.2001) by 2000 c. 38, s. 230(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F213S. 19(5A)(5B) inserted (1.2.2001) by 2000 c. 38, s. 230(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F214Word in s. 19 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(b) Table}; S.I. 2004/827, art. 4(g)

F215Words in s. 19(7) inserted (1.12.2006) by Railways Act 2005 (c. 14), ss. 54, 60, Sch. 11 para. 3(b); S.I. 2006/2911, art. 2, Sch. (subject to the transitional and saving provisions in arts. 3-7)

F216S. 19(9): Words in definition of

installation owner

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

F217Words in s. 19(11) inserted (1.2.2001) by 2000 c. 38, s. 233(2)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F218S. 19(13) 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)

C24S. 19(1) restricted (18.12.1996) by 1996 c. 61, s. 17(4)

[F21919A Review of access charges by Regulator.E+W+S

Schedule 4A to this Act (which contains provision about the review of access charges by [F220the Office of Rail Regulation] ) shall have effect.]

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Amendments (Textual)

F219S. 19A inserted (30.11.2000) by 2000 c. 38, s. 231(1), 275(1) (with Sch. 28 paras. 11, 17)

F220Words in s. 19A substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

20 Exemption of railway facilities from sections 17 [F221, 18 and 22A].E+W+S

(1)The Secretary of State may, after consultation with [F222the Office of Rail Regulation] , by order grant exemption from sections 17 and 18 above [F223and section 22A below]in respect of such railway facilities as may be specified in the order, but subject to compliance with such conditions (if any) as may be so specified.

(2)A facility exemption under subsection (1) above may be granted—

(a)to persons of a particular class or description or to a particular person; and

(b)in respect of railway facilities of a particular class or description or a particular railway facility, or in respect of part only of any such railway facilities or facility;

F224. . .

(3)If a facility owner makes an application under this subsection to [F222the Office of Rail Regulation] for the grant of an exemption from sections 17 and 18 above [F223and section 22A below] in respect of the whole or any part of his railway facility, [F222the Office of Rail Regulation] , after consultation with the Secretary of State—

(a)may either grant or refuse the exemption, whether wholly or to such extent as [F225it] may specify in the exemption; and

(b)if and to the extent that [F225it] grants [F226the exemption] , may do so subject to compliance with such conditions (if any) as [F225it] may so specify.

(4)Before granting a facility exemption under subsection (3) above, [F222the Office of Rail Regulation] shall give notice—

(a)stating that [F225it] proposes to grant the facility exemption,

(b)stating the reasons why [F225it] proposes to grant the facility exemption, and

(c)specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed facility exemption may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(5)A notice under subsection (4) above shall be given by publishing the notice in such manner as [F222the Office of Rail Regulation] considers appropriate for bringing it to the attention of persons likely to be affected by the grant of the facility exemption.

(6)If any condition (the “broken condition") of a facility exemption is not complied with—

(a)the Secretary of State, in the case of a facility exemption under subsection (1) above, or

(b)[F222the Office of Rail Regulation], in the case of a facility exemption under subsection (3) above,

may give to any relevant person a direction declaring that the facility exemption is revoked, so far as relating to that person, to such extent and as from such date as may be specified in the direction.

(7)For the purposes of subsection (6) above—

  • condition”, in relation to a facility exemption, means any condition subject to compliance with which the facility exemption was granted;

  • relevant person”, in the case of any facility exemption, means a person who has the benefit of the facility exemption and who—

    (a)

    is a person who failed to comply with the broken condition or with respect to whom the broken condition is not complied with; or

    (b)

    is the facility owner in the case of the railway facility in relation to which the broken condition is not complied with.

(8)Subject to subsection (6) above, a facility exemption, unless previously revoked in accordance with any term contained in the facility exemption, shall continue in force for such period as may be specified in, or determined by or under, the facility exemption.

F227(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10)Any application for a facility exemption under subsection (3) above must be made in writing; and where any such application is made, [F222the Office of Rail Regulation] may require the applicant to furnish [F225it] with such information as [F222the Office of Rail Regulation] may consider necessary to enable [F225it] to decide whether to grant or refuse the facility exemption.

(11)Facility exemptions may make different provision, or be granted subject to compliance with different conditions, for different cases.

F228(12). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(13)In this Part “facility exemption” means an exemption from sections 17 and 18 above [F223and section 22A below] granted under any provision of this section in respect of the whole or any part of a railway facility; and a railway facility is an “exempt facility” if and to the extent that it is the subject of such an exemption.

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Amendments (Textual)

F221Words in s. 20 sidenote substituted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 23(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F222Words in s. 20 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F223Words in s. 20(1)(3)(13) inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 23(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F224Words in s. 20(3) repealed (1.2.2001) by 2000 c. 38, ss. 252, 274, Sch. 27 para. 23(3), 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)

F225Word in s. 20 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(b) Table}; S.I. 2004/827, art. 4(g)

F227S. 20(9) 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)

F228S. 20(12) 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)

21 Model clauses for access contracts.E+W+S

(1)[F229the Office of Rail Regulation] may prepare and publish model clauses for inclusion in access contracts.

(2)Different model clauses may be prepared and published in relation to different classes or descriptions of railway facility.

(3)[F229the Office of Rail Regulation] may from time to time revise any model clauses published under this section and may publish those clauses as so revised.

(4)In preparing or revising any model clauses under this section, [F229the Office of Rail Regulation] may consult such persons as [F230it] thinks fit.

(5)[F229the Office of Rail Regulation] shall encourage, and may require, the use of any [F231of its] model clauses F232. . . in access contracts wherever [F230it] considers it appropriate.

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Amendments (Textual)

F229Words in s. 21 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F230Word in s. 21 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(b) Table}; S.I. 2004/827, art. 4(g)

22 Amendment of access agreements.E+W+S

(1)Any amendment, or purported amendment, of an access agreement shall be void unless the amendment has been approved by [F233the Office of Rail Regulation][F234or is made pursuant to directions under section 22A or 22C below or Schedule 4A to this Act.].

(2)[F233the Office of Rail Regulation] may, for the purposes of subsection (1) above, give the parties to any particular access agreement [F235its] general approval to the making to that access agreement of amendments of a description specified in the approval; and any approval so given shall not be revoked.

(3)[F233the Office of Rail Regulation]may, for the purposes of subsection (1) above, give [F235its] general approval to the making to access agreements, or to access agreements of a particular class or description, of amendments of a description specified in the approval.

(4)Where [F233the Office of Rail Regulation] gives or revokes a general approval under subsection (3) above, [F236it] shall publish the approval or revocation (as the case may be) in such manner as [F236it] considers appropriate.

(5)The revocation of a general approval given under subsection (3) above shall not affect the continuing validity of any amendment made in accordance with, and before the revocation of, that approval.

F237(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F238(6A)Neither [F239the Office of Fair Trading] nor [F233the Office of Rail Regulation] may exercise, in respect of an access agreement, the powers given by section 32 (enforcement directions) or section 35(2) (interim directions) of the Competition Act 1998.

F238(6B)Subsection (6A) does not apply to the exercise of the powers given by section 35(2) in respect of conduct—

(a)which is connected with an access agreement; and

(b)in respect of which section 35(1)(b) of that Act applies.]

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Amendments (Textual)

F233Words in s. 22 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F234Words in s. 22(1) inserted (1.2.2001) by 2000 c. 38, s. 232(1); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F235Word in s. 22 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(c) Table}; S.I. 2004/827, art. 4(g)

F236Word in s. 22 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(b) Table}; S.I. 2004/827, art. 4(g)

F237S. 22(6) 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)

F239Words in s. 22(6A) substituted (1.4.2003) by 2002 c. 40, ss. 278, 279, Sch. 25 para. 30(7); S.I 2003/766, {art. 2}, Sch. (with transitional and transitory provision in art. 3)

[F24022A Directions to require amendment permitting more extensive use.E+W+S

(1)[F241the Office of Rail Regulation] may, on the application of the person permitted by an access agreement to use the whole or part of a railway facility or network installation, give directions requiring the parties to the access agreement to make to the agreement—

(a)amendments permitting more extensive use of the railway facility or network installation by the applicant; and

(b)any amendments which [F241the Office of Rail Regulation] considers necessary or desirable in consequence of those amendments.

(2)In subsection (1)(a) above “more extensive use” means—

(a)increased use for the purpose for which the applicant is permitted by the access agreement to use the railway facility or network installation, or

(b)(in the case of a railway facility) use for any other permitted purpose,

and if the applicant is permitted to use only part of the railway facility or network installation, includes use for the purpose for which he is permitted to use it, or (in the case of a railway facility) for any other permitted purpose, of any other part of the railway facility or network installation.

(3)In subsection (2) above “permitted purpose”, in relation to a railway facility, means a purpose for which directions may be given in relation to the railway facility under section 17 above.

(4)No directions shall be given under this section in relation to a railway facility if and to the extent that—

(a)the railway facility is, by virtue of section 20 above, an exempt facility; or

(b)performance of the access agreement as amended would necessarily involve the facility owner in being in breach of another access agreement F242. . . .

(5)No directions shall be given under this section in relation to a railway facility or network installation if and to the extent that, as a result of an obligation or duty owed by the facility owner or installation owner which arose before the coming into force of section 17 or 19 above, the consent of some other person is required by him before he may make the amendments.

(6)Nothing in this section authorises [F241the Office of Rail Regulation] to give directions to any person requiring him to grant a lease of the whole or any part of a railway facility or network installation.

(7)In this section and section 22B below—

(a)[F243lease” has]the same meaning as in section 17 above; and

(b)network installation” has the same meaning as in section 19 above.]

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Amendments (Textual)

F240S. 22A inserted (1.2.2001) by 2000 c. 38, s. 232(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F241Words in s. 22A substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F24422B Applications for directions under section 22A: procedure.E+W+S

(1)Schedule 4 to this Act shall have effect with respect to applications for directions under section 22A above as it has effect with respect to applications for directions under section 17 above (but subject as follows).

(2)In its application by virtue of this section Schedule 4 to this Act has effect with the following modifications—

(a)in paragraph 1, in the definition of “the facility owner", for “17(1)" there shall be substituted “22A" and, in the definition of “interested person", for “enter into the required access contract" there shall be substituted “make the amendments";

(b)in paragraph 2(1), for “which the applicant proposes should be contained in the required access contract" and “to be contained in the required access contract" there shall be substituted “of the proposed amendments";

(c)in paragraph 5(2), for “to the facility owner requiring him to enter into an access contract" there shall be substituted “under section 22A of this Act";

(d)for paragraph 5(2)(a)(i) and (ii) there shall be substituted “the amendments to be made and the date by which they are to be made; and";

(e)in paragraph 6(2), for the words from “facility owner’s" to the end of paragraph (c) there shall be substituted “making of the amendments, the performance of the access agreement as amended or failing to take any step to protect the interests of the interested person in connection with the application for directions or the making of the amendments,"; and

(f)in paragraph 6(3), for “any access contract which is entered into" there shall be substituted “the amendments made";

and the definition of “the required access contract", and the words following that definition, in paragraph 1 and paragraph 5(4) shall be omitted.

(3)In its application by virtue of this section in relation to an application relating to an installation access contract Schedule 4 to this Act has effect with the following further modifications—

(a)references to the railway facility shall have effect as references to the network installation;

(b)references to the facility owner shall have effect as references to the installation owner; and

(c)in the definition of “interested person" in paragraph 1, for “17" there shall be substituted “19".

(4)The Regulator may determine that, in their application by virtue of this section in relation to any particular application, paragraphs 3 and 4 of Schedule 4 to this Act shall have effect as if for any of the numbers of days specified in them there were substituted the lower number specified by the Regulator.

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Amendments (Textual)

F244S. 22B inserted (1.2.2001) by 2000 c. 38, s. 232(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F24522C Amendment: supplementary.E+W+S

(1)[F246the Office of Rail Regulation] may give directions requiring the parties to an access agreement to make to the access agreement amendments which are, in [F247its] opinion, necessary to give effect to the conditions of a licence or otherwise required in consequence of the conditions of a licence.

(2)[F246the Office of Rail Regulation] shall not have power to direct or otherwise require amendments to be made to an access agreement except in accordance with section 22A above, subsection (1) above or Schedule 4A to this Act.

(3)If an access agreement includes provision for any of its terms to be varied—

(a)by agreement of the parties, or

(b)by direction or other requirement of [F246the Office of Rail Regulation] ,

a variation made pursuant to that provision shall not be regarded for the purposes of section 22 above or subsection (2) above as an amendment of the agreement.

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Amendments (Textual)

F245S. 22C inserted (1.2.2001) by 2000 c. 38, s. 232(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F246Words in s. 22C substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F247Word in s. 22C substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(c) Table}; S.I. 2004/827, art. 4(g)

Modifications etc. (not altering text)

Franchising of passenger servicesE+W+S

23 Passenger services to be subject to franchise agreements.E+W+S

(1)It shall be the duty of the [F248appropriate designating authority] from time to time to designate [F249such services for the carriage of passengers by railway (other than services which are, by virtue of section 24 below, exempt from designation under this subsection) as it considers ought to be provided under franchise agreements.].

(2)The [F248appropriate designating authority] may perform [F250its] duty under subsection (1) above by designating particular services or services of a class or description.

[F251((2ZA))Where the Scottish Ministers designate Scotland-only services, they may also designate cross-border services which—

(a)they consider should be provided under the same franchise agreement as particular Scotland-only services or a particular class of them; and

(b)are not exempt from designation under subsection (1) by virtue of section 24.

((2ZB))Nothing in this section requires the Secretary of State to designate a cross-border service already designated by the Scottish Ministers.

((2ZC))Before the Secretary of State or the Scottish Ministers designate a cross-border service he or they must consult the other.]

[F252(2A)A designation may be varied or revoked; but a variation or revocation of the designation of particular services, or services of a class or description, shall not affect any franchise agreement previously entered into with respect to those services or services of that class or description.

(2B)F253. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(3)In this Part—

  • [F254“the appropriate designating authority”—

    (a)

    in relation to Scotland-only services, means the Scottish Ministers; and

    (b)

    in relation to all other services, means the Secretary of State;

  • “the appropriate franchising authority”—

    (a)

    in relation to a Scottish franchise agreement, means the Scottish Ministers; and

    (b)

    in relation to any other franchise agreement, means the Secretary of State;]

  • franchise agreement” means an agreement [F255with the Secretary of State, with the Scottish Ministers or with the Secretary of State and the National Assembly for Wales jointly,]under which another party undertakes either—

    (a)

    to provide, or

    (b)

    to secure that a wholly owned subsidiary of his provides,

    throughout the franchise term those services for the carriage of passengers by railway to which the agreement relates;

  • franchise operator”, in relation to any franchise agreement, means the person (whether the franchisee or, as the case may be, the wholly owned subsidiary of the franchisee) who is to provide the franchised services;

  • franchise period”, in relation to any franchise agreement, means the franchise term, except where the franchise agreement is terminated before the end of that term, in which case it means so much of that term as ends with that termination;

  • franchise term”, in relation to any franchise agreement, means the period specified in the franchise agreement as the period throughout which the franchisee is to provide, or secure that a wholly owned subsidiary of his provides, the franchised services, and includes any such extension of that period as is mentioned in section 29(3) below;

  • franchised services”, in relation to any franchise agreement, means the services for the carriage of passengers by railway which are to be provided under that franchise agreement;

  • franchisee” means—

    (a)

    in relation to a franchise agreement under which a party undertakes to secure that a wholly owned subsidiary of his provides the franchised services, the party so undertaking; or

    (b)

    in relation to any other franchise agreement, the person who is to provide the franchised services.

(4)Any reference in this Part to the provision of services under a franchise agreement is a reference to the provision of those services by the franchise operator; and where the franchise operator is, or is to be, a wholly owned subsidiary of the franchisee, any reference to the provision of services by the franchisee under a franchise agreement shall accordingly be construed as a reference to his securing their provision by the franchise operator.

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Amendments (Textual)

F249Words in s. 23(1) substituted (1.2.2001) by 2000 c. 38, s. 212(1) (with Sch. 28 para. 3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F250Words in s. 23(2) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 14(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))

F252S. 23(2A)(2B) inserted (1.2.2001) by 2000 c. 38, s. 212(2)(with Sch. 28 para. 3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F254Definitions of "appropriate designating authority" and "appropriate franchising authority" in s. 23(3) inserted (24.7.2005 for certain purposes and 16.10.2005 in so far as not already in force) by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 13(4)(a)(5): S.I. 2005/1909, art 2, Sch.; S.I. 2005/2812, art. 2(1), Sch. 1

F255Words in definition of "franchise agreement" in s. 23(3) substituted (24.7.2005 for certain purposes and 16.10.2005 in so far as not already in force) by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 13(4)(b)(5): S.I. 2005/1909, art 2, Sch.; S.I. 2005/2812, art. 2(1), Sch. 1

Modifications etc. (not altering text)

C27S. 23(1) excluded (1.4.1994) by S.I. 1994/606, art. 6

S. 23(1) excluded (13.12.1999) by S.I. 1999/3112, art. 3

Commencement Information

I4S. 23 wholly in force at 1.4.1994; s. 23 not in force at Royal Assent see s. 154(2); s. 23(3)(4) in force at 6.1.1994 by S.I. 1993/3237, art. 2(2); s. 23 in force at 1.4.1994 insofar as not already in force by S.I. 1994/571, art. 5

24 Exemption of passenger services from section 23(1).E+W+S

(1)The [F256appropriate designating authority] may by order grant exemption from designation under section 23(1) above in respect of such services for the carriage of passengers by railway as may be specified in the order, but subject to compliance with such conditions (if any) as may be so specified.

(2)A franchise exemption under subsection (1) above may be granted—

(a)to persons of a particular class or description or to a particular person; and

(b)in respect of services generally, services of a particular class or description or a particular service, or in respect of part only of any such services or service;

and a franchise exemption granted to persons of a particular class or description shall be published in such manner as the [F256appropriate designating authority] considers appropriate for bringing it to the attention of persons of that class or description.

(3)If a person who provides, or who proposes to introduce, services for the carriage of passengers by railway makes an application to the [F256appropriate designating authority] under this subsection for the grant of an exemption from designation under section 23(1) above in respect of any such service which he provides or proposes to introduce, the [F256appropriate designating authority] , after consultation with [F257the Office of Rail Regulation]F258. . . —

(a)may either grant or refuse the exemption, whether wholly or to such extent as [F259the appropriate designating authority] may specify in the exemption; and

(b)if and to the extent that [F259the appropriate designating authority] grants it, may do so subject to compliance with such conditions (if any) as [F259the appropriate designating authority] may so specify.

[F260(3A)Before granting a franchise exemption in respect of a cross-border service, the Secretary of State must consult the Scottish Ministers.]

(4)Before granting a franchise exemption under subsection (3) above, the [F256appropriate designating authority] shall give notice—

(a)stating that [F261it] proposes to grant the franchise exemption,

(b)stating the reasons why [F261it] proposes to grant the franchise exemption, and

(c)specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed franchise exemption may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(5)A notice under subsection (4) above shall be given by publishing the notice in such manner as the [F256appropriate designating authority] considers appropriate for bringing it to the attention of persons likely to be affected by the grant of the franchise exemption.

(6)If any condition (the “broken condition") of a franchise exemption [F262granted by the appropriate designating authority is not complied with, it] may give to any relevant person a direction declaring that the franchise exemption is revoked, so far as relating to that person, to such extent and as from such date as may be specified in the direction.

(7)For the purposes of subsection (6) above—

  • condition”, in relation to a franchise exemption, means any condition subject to compliance with which the franchise exemption was granted;

  • relevant person”, in the case of any franchise exemption, means a person who has the benefit of the franchise exemption and who—

    (a)

    is a person who failed to comply with the broken condition or with respect to whom the broken condition is not complied with; or

    (b)

    provides any of the services in relation to which the broken condition is not complied with.

(8)Subject to subsection (6) above, a franchise exemption, unless previously revoked in accordance with any term contained in the franchise exemption, shall continue in force for such period as may be specified in, or determined by or under, the franchise exemption.

(9)Any application for a franchise exemption under subsection (3) above must be made in writing; and where any such application is made, the [F256appropriate designating authority] may require the applicant to furnish [F263it] with such information as the [F256appropriate designating authority] may consider necessary to enable [F263it] to decide whether to grant or refuse the franchise exemption.

(10)Any franchise exemption granted under subsection (3) above shall be in writing.

(11)Subsections (1) and (3) above apply in relation to the grant of a franchise exemption whether it is to become effective on, or after, the day on which section 23(1) above comes into force.

(12)Franchise exemptions may make different provision for different cases.

[F264(12A)A statutory instrument containing an order under this section by the Scottish Ministers is subject to annulment in pursuance of a resolution of the Scottish Parliament.]

(13)In this Part, “franchise exemption” means an exemption from designation under section 23(1) above granted under any provision of this section in respect of any service for the carriage of passengers by railway.

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Amendments (Textual)

F257Words in s. 24 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

25 Public sector operators not to be franchisees.E+W+S

(1)The following bodies and persons (in this Part referred to as “public sector operators”) shall not be franchisees—

(a)any Minister of the Crown, Government department or other emanation of the Crown;

(b)any local authority;

[F265(bb)the Greater London Authority;

F266(bc)Transport for London;]

(c)any metropolitan county passenger transport authority;

(d)any body corporate whose members are appointed by a Minister of the Crown, a Government department, a local authority [F267, the Greater London Authority, Transport for London] or a metropolitan county passenger transport authority or by a body corporate whose members are so appointed;

(e)a company—

(i)a majority of whose issued shares are held by or on behalf of any of the bodies or persons falling within paragraphs (a) to (d) above;

(ii)in which the majority of the voting rights are held by or on behalf of any of those bodies or persons;

(iii)a majority of whose board of directors can be appointed or removed by any of those bodies or persons; or

(iv)in which the majority of the voting rights are controlled by any of those bodies or persons, pursuant to an agreement with other persons;

(f)a subsidiary of a company falling within paragraph (e) above.

(2)Expressions used in sub-paragraphs (i) to (iv) of subsection (1)(e) above and in section 736 of the M2Companies Act 1985 have the same meaning in those sub-paragraphs as they have in that section.

F268(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F268(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F268(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F268(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F268(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F268(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F268(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F268S. 25(3)-(9) 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)

Commencement Information

I5S. 25 wholly in force at 1.4.1994; s. 25 not in force at Royal Assent see s. 154(2); s. 25(1)(2) in force at 6.1.1994 for specified purposes by S.I. 1993/3237, art. 2(2); s. 25 in force at 1.4.1994 insofar as not alreday in force by S.I. 1994/571, art. 5

Marginal Citations

26 Invitations to tender for franchises.E+W+S

(1)[F269The appropriate franchising authority may select the person who is to be the franchisee in relation to a franchise agreement]from among those who submit tenders in response to an invitation to tender under this section for the right to provide, or to secure that a wholly owned subsidiary provides, services for the carriage of passengers by railway under that franchise agreement.

(2)The [F270appropriate franchising authority] shall prepare any such invitation to tender and shall issue that invitation to such persons as [F271it] may, after consultation with [F272the Office of Rail Regulation] , think fit.

(3)The [F270appropriate franchising authority] shall not issue an invitation to tender under this section to (or entertain such a tender from) any person unless [F271it] is of the opinion that the person has, or is likely by the commencement of the franchise term to have, an appropriate financial position and managerial competence, and is otherwise a suitable person, to be the franchisee.

[F273(4)F274. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F275(4A)The Secretary of State and the Scottish Ministers shall each publish a statement of policy about how he proposes, or (as the case may be) they propose, to exercise the power under subsection (1) above.

(4B)The statement must in particular include the policy of the Secretary of State or the Scottish Ministers about—

(a)when his or their selection of the person to be a franchisee under a franchise agreement is likely to be from those submitting tenders in response to an invitation to do so;

(b)when it is likely such an invitation will not be issued; and

(c)the means by which he is, or they are, proposing that the selection will be made in cases where there is no such invitation.

(4C)In deciding whether to select the person who is to be the franchisee under a franchise agreement by means of an invitation to tender and whom so to select, the appropriate franchising authority must have regard to its statement of policy.

(4D)The Secretary of State or Scottish Ministers—

(a)may at any time alter or replace the statement of policy which he has made or (as the case may be) which they have made; and

(b)where that statement is altered or replaced, must publish the altered or replacement statement.

(4E)Before preparing, altering or replacing a statement of policy—

(a)the Secretary of State must consult the National Assembly for Wales and undertake such other consultation as he considers appropriate; and

(b)the Scottish Ministers must undertake such consultation as they consider appropriate.

(4F)Where a statement of policy is prepared, altered or replaced, a copy of it must be laid—

(a)in the case of a statement prepared, altered or replaced by the Secretary of State, before Parliament; and

(b)in the case of a statement prepared, altered or replaced by the Scottish Ministers, before the Scottish Parliament.]]

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Amendments (Textual)

F269Words in s. 26(1) substituted (24.7.2005 for certain purposes and 16.10.2005 in so far as not already in force) by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 15(2)(6); S.I. 2005/1909, art. 2, Sch.; S.I. 2005/2812, art. 2(1), Sch. 1

F270Words in s. 26(2)(3) substituted (24.7.2005 for certain purposes and 16.10.2005 in so far as not already in force) by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 15(3)(6); S.I. 2005/1909, art 2, Sch.; S.I. 2005/2812, art. 2(1), Sch. 1

F271Words in s. 26(2)(3) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 16(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))

F272Words in s. 26 substituted (5.7.2004) by Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F273S. 26(4)-(10) inserted (1.2.2001) by 2000 c. 38, s. 212(3) (with Sch. 28 para. 3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F274S 26(4) repealed (24.7.2005 for certain purposes and otherwise prosp.) by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 15(4)(6), Sch. 13 Pt. 1 (with s. 14(4)(5), Sch. 11 para. 11(2)); S.I. 2005/1909, art 2, Sch.

F275S. 26(4A)-(4F) substituted (24.7.2005 for certain purposes and 16.10.2005 in so far as not already in force) for s. 26(5)-(10) by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 15(5)(6); S.I. 2005/1909, art. 2, Sch.; S.I. 2005/2812, art. 2(1), Sch. 1

[F27626ZA No adequate tender for franchise received.E+W+S

(1)This section applies in the case of an invitation to tender under section 26 for the provision of services if—

(a)the appropriate franchising authority receives no tender in response to the invitation; or

(b)it receives a tender but considers that the services would be provided more economically and efficiently if they were provided otherwise than under a franchise agreement entered into in response to the tender.

(2)The appropriate franchising authority may —

(a)issue a new invitation to tender under section 26 for the provision of the services;

(b)decide to secure the provision of the services under a franchise agreement with a person who did not submit a tender; or

(c)decide not to seek to secure the provision of the services under a franchise agreement.

(3)Nothing in this section prevents the appropriate franchising authority, where it has decided not to seek to secure the provision of services under a franchise agreement, from subsequently making a decision to issue a new invitation to tender for the provision of those services.]

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Amendments (Textual)

F276S. 26ZA substituted (24.7.2005 for certain purposes and 16.10.2005 in so far as not already in force) for ss. 26A, 26B, 26C by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 16; S.I. 2005/1909, art. 2, Sch.; S.I. 2005/2812, art. 2(1), Sch. 1

26B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

26C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

27 Transfer of franchise assets and shares.E+W+S

(1)It shall be the duty of the [F279appropriate franchising authority] before entering into a franchise agreement to satisfy [F280itself] that if the franchise agreement is entered into—

(a)the initial franchise assets (if any) for that franchise agreement will be vested in the person who is to be the franchise operator; and

(b)if the franchise agreement is to be one under which the franchisee undertakes to secure that a wholly owned subsidiary of his provides the franchised services, that the franchise operator will be a wholly owned subsidiary of the franchisee.

(2)After a franchise agreement has been entered into, it shall be the duty of the [F279appropriate franchising authority] , before any property, rights or liabilities are subsequently designated as franchise assets in accordance with the terms of, or by amendment to, the franchise agreement, to satisfy [F280itself] that, if the property, rights or liabilities in question are so designated, they will be vested in the franchise operator.

(3)Without the consent of the [F279appropriate franchising authority] , the franchise operator shall not—

(a)if and to the extent that the franchise assets are property or rights—

(i)transfer or agree to transfer, or create or agree to create any security over, any franchise assets or any interest in, or right over, any franchise assets; or

(ii)create or extinguish, or agree to create or extinguish, any interest in, or right over, any franchise assets; and

(b)if and to the extent that the franchise assets are liabilities, shall not enter into any agreement under which any such liability is released or discharged, or transferred to some other person.

(4)Where the franchise agreement is one under which the franchisee undertakes to secure that a wholly owned subsidiary of his provides the franchised services, the franchisee shall not, without the consent of the [F279appropriate franchising authority] , take any action which would result in the franchise operator ceasing to be a wholly owned subsidiary of his.

(5)Any transaction which is entered into in contravention of subsection (3) or (4) above shall be void.

(6)In England and Wales, no execution or other legal process may be commenced or continued, and no distress may be levied, against any property which is, or rights which are, franchise assets in the case of any franchise agreement.

(7)In Scotland, no diligence or other legal process may be carried out or continued against any property which is, or rights which are, franchise assets in the case of any franchise agreement.

(8)In any case where—

(a)there are to be initial franchise assets in relation to a franchise agreement,

(b)a franchise agreement is to be one which provides for subsequent designation of property, rights or liabilities as franchise assets, or

(c)property, rights or liabilities are to be designated as franchise assets by an amendment made to a franchise agreement,

the [F279appropriate franchising authority] shall ensure that the franchise agreement includes provision specifying, or providing for the determination of, amounts to be paid in respect of the property, rights and liabilities which, immediately before the end of the franchise period, constitute the franchise assets in relation to that franchise agreement if and to the extent that they are transferred by [F281a scheme under [F282section 12 of the Railways Act 2005]]at or after the end of that period.

(9)Without prejudice to the generality of the provisions that may be included in a franchise agreement with respect to the acquisition, provision, disposal or other transfer of property, rights or liabilities (whether franchise assets or not), the [F279appropriate franchising authority] may undertake in a franchise agreement to exercise [F283its] powers under [F282section 12 of the Railways Act 2005] to transfer franchise assets to [F283itself] or another in such circumstances as may be specified in the franchise agreement.

(10)The [F279appropriate franchising authority] shall ensure that every franchise agreement includes such provision (if any) as [F284it] may consider appropriate in the particular case for the purpose of securing—

(a)that the franchise assets are adequately maintained, protected and preserved; and

(b)that, at the end of the franchise period, possession of such of the franchise assets as may be specified for the purpose in the agreement, or by the Franchising Director in accordance with the agreement, is delivered up to the Franchising Director or such other person as may be so specified.

(11)In this Part, “franchise assets”, in relation to any franchise agreement, means—

(a)any property, rights or liabilities which are designated as franchise assets in the franchise agreement as originally made (in this section referred to as the “initial franchise assets”), and

(b)any property, rights or liabilities which, after the making of the franchise agreement, are designated as franchise assets in accordance with the terms of, or by an amendment made to, the franchise agreement,

but does not include any property, rights or liabilities which, in accordance with the terms of, or by an amendment made to, the franchise agreement, have for the time being ceased to be designated as franchise assets.

(12)No rights or liabilities under contracts of employment shall be designated as franchise assets.

(13)In this section “security” has the meaning given by section 248(b) of the M3Insolvency Act 1986.

F285(14). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F285(15). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F279Words in s. 27 substituted (24.7.2005 for certain purposes and 16.10.2005 in so far as not already in force) by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 17(1); S.I. 2005/1909, art. 2, Sch.; S.I. 2005/2812, art. 2(1), Sch. 1

F280Words in s. 27(1)(2) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 17(2); 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))

F281Words in s. 27(8) substituted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 24(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F282Words in s. 27(8)(9) substituted (24.7.2005 for certain purposes and 16.10.2005 in so far as not already in force) by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 17(2); S.I. 2005/1909, art. 2, Sch.; S.I. 2005/2812, art. 2(1), Sch. 1

F283Words in s. 27(8) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 17(4); 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))

F284Words in s. 27(10) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 17(5); 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))

F285S. 27(14)(15) 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)

Marginal Citations

28 Fares and approved discount fare schemes.E+W+S

(1)A franchise agreement may include provision with respect to the fares to be charged for travel by means of the franchised services.

(2)Subject to the other provisions of this Act, if it appears to the [F286appropriate franchising authority] that the interests of persons who use, or who are likely to use, franchised services so require, [F287it] shall ensure that the franchise agreement in question contains any such provision as [F287it] may consider necessary for the purpose of securing that any fares, or any fares of a class or description, which are to be charged are, in [F287its] opinion, reasonable in all the circumstances of the case.

(3)Every franchise agreement shall include provision requiring the franchise operator—

(a)to participate in every approved discount fare scheme,

(b)to charge fares, in cases to which such a scheme applies, at rates which are not in excess of the levels or, as the case may be, the maximum levels set by the scheme, and

(c)otherwise to comply with the requirements of every such scheme,

if and to the extent that the franchised services are services, or services of a class or description, in relation to which the approved discount fare scheme in question applies.

(4)The discount fare schemes which are to be regarded [F288, in relation to a franchise agreement,] for the purposes of this section as “approved” are those which are from time to time approved for the purposes of this section by the [F289appropriate franchising authority] .

(5)In this section—

  • discount fare scheme” means any scheme for enabling persons who are young, elderly or disabled to travel by railway at discounted fares, subject to compliance with such conditions (if any) as may be imposed by or under the scheme;

  • discounted fare” means a lower fare than the standard fare for the journey in question;

  • scheme” includes any agreement or arrangements.

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Amendments (Textual)

F286Words in s. 28(2) substituted (24.7.2005 for certain purposes and 16.10.2005 in so far as not already in force) by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 18(1)(3); S.I. 2005/1909, art. 2, Sch.; S.I. 2005/2812, art. 2(1), Sch. 1

F287Words in s. 28(2) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 18(2); 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))

F288Words in s. 28(4) inserted (24.7.2005 for certain purposes and 16.10.2005 in so far as not already in force) by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 18(2)(a)(3); S.I. 2005/1909, art 2, Sch.; S.I. 2005/2812, art. 2(1), Sch. 1

F289Words in s. 28(4) substituted (24.7.2005 for certain purposes and otherwise prosp.) by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 18(2)(b)(3); S.I. 2005/1909, art. 2, Sch.

29 Other terms and conditions of franchise agreements.E+W+S

(1)The [F290appropriate franchising authority] may enter into a franchise agreement on conditions requiring—

(a)the rendering to the Franchising Director by the franchisee or the franchise operator of payments of such amounts and at such intervals as may be specified in, or determined by or under, the franchise agreement; F291. . .

F291(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)A franchise agreement may include provision requiring the franchisee—

(a)to operate any additional railway asset; or

(b)to secure the operation of any additional railway asset by the franchise operator or any other wholly owned subsidiary of the franchisee.

(3)A franchise agreement shall include provision specifying the franchise term and may include provision enabling that term to be extended by such further term as may be specified in the franchise agreement.

(4)Without prejudice to the generality of the provisions relating to property, rights and liabilities that may be included in a franchise agreement, a franchise agreement may include provision requiring the franchise operator—

(a)to acquire from such person as may be specified in the franchise agreement, and to use, such property or rights as may be so specified; or

(b)to undertake such liabilities as may be so specified.

(5)Subject to any requirements imposed by or under this Act, a franchise agreement may contain any such provisions as the [F290appropriate franchising authority] may think fit.

F292(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F292(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)In this Part, “additional railway asset” means any network, station or light maintenance depot, and any reference to an additional railway asset includes a reference to any part of an additional railway asset.

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Amendments (Textual)

F290Words in s. 29 substituted (24.7.2005 for certain purposes and 16.10.2005 in so far as not already in force) by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 19; S.I. 2005/1909, art. 2, Sch.; S.I. 2005/2812, art. 2(1), Sch. 1

F291S. 29(1)(b) and word “or" immediately preceding it 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)

F292S. 29(6)(7) 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)

Commencement Information

I6S. 29 wholly in force at 1.4.1994; s. 29 not in force at Royal Assent see s. 154(2); s. 29(8) in force at 6.1.1994 by S.I. 1993/3237, art. 2(2); s. 29 in force at 1.4.1994 insofar as not already in force by S.I. 1994/571, art. 5

[F29330 Duty of Authority in absence of franchise.E+W+S

(1)The Authority shall provide, or secure the provision of, services for the carriage of passengers by railway where—

(a)a direction not to seek to secure the provision of the services under a franchise agreement has been given to the Authority under section 26A or 26B above (and not revoked); or

(b)a franchise agreement in respect of the services is terminated or otherwise comes to an end but no further franchise agreement has been entered into in respect of the services (otherwise than because of such a direction).

(2)The duty in subsection (1) above in relation to any services ceases if the services begin (or again begin) to be provided under a franchise agreement.

(3)Subsection (1) above does not—

(a)require the Authority to provide or secure the provision of services if and to the extent that, in its opinion, adequate alternative railway passenger services are available;

(b)preclude it from giving notice under subsection (5) of section 38 below in relation to any of the services, in which case its duty under this section to secure the provision of the services to which the notice relates will (subject to subsections (5) and (6) of that section) terminate on the day specified in the notice in pursuance of paragraph (b) of that subsection; or

(c)preclude it from ceasing to provide or secure the provision of any of the services in any case falling within any of paragraphs (a) to (d) of subsection (2) of that section.]

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Amendments (Textual)

F293S. 30 substituted (1.2.2001) by 2000 c. 38, s. 212(5) (with Sch. 28 para. 3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

31 Leases granted in pursuance of franchise agreements: no security of tenure.E+W+S

(1)In any case where—

(a)a franchise agreement makes provision for the franchisee, the franchise operator or a wholly owned subsidiary of the franchisee to enter into an agreement (“the contemplated agreement") with a person who has an interest in a network or a railway facility,

(b)the network or railway facility is to be used for or in connection with the provision of any of the franchised services, and

(c)the contemplated agreement creates a tenancy of any property which (whether in whole or in part) constitutes, or is comprised in, the network or railway facility,

neither Part II of the M4Landlord and Tenant Act 1954 (security of tenure of business premises) nor the M5Tenancy of Shops (Scotland) Act 1949 (security of tenure of shop premises in Scotland) shall apply to that tenancy.

(2)For the purposes of this section, a person shall be regarded as having an interest in a network or railway facility if he has an estate or interest in, or right over, any of the property which constitutes, or is comprised in, the network or railway facility.

(3)Any reference in this section to a network or a railway facility includes a reference to any part of a network or railway facility.

(4)In this section—

  • agreement” includes a lease, underlease or sublease (as well as a tenancy agreement or an agreement for a lease, underlease or sublease);

  • tenancy” has the same meaning as it has in Part II of the M6Landlord and Tenant Act 1954 or, in Scotland, as it has in the M7Tenancy of Shops (Scotland) Act 1949.

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Marginal Citations

Passenger Transport Authorities and ExecutivesE+W+S+N.I.

F29432. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S+N.I.

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Amendments (Textual)

F294S. 32 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)

F29533. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

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Amendments (Textual)

F295S. 33 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)

34 Passenger Transport Authorities and Executives: franchising.E+W+S

F296. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F296S. 34 repealed (24.7.2005 for E.W. and otherwise prosp.) by Railways Act 2005 (c. 14), ss. 14(1)(c), 59, 60, Sch. 13 Pt. 1 (with s. 14(4)(5), Sch. 11 para. 11(2)); S.I. 2005/1909 {art. 2}, Sch.

Modifications etc. (not altering text)

C28S. 34: certain functions transferred to the Scottish Ministers (28.11.2005) by The Transfer of Rail Functions To The Scottish Ministers Order 2005 (S.I. 2005/598), art. 3, Sch. 1

35 Termination and variation of section 20(2) agreements by the [F297Authority].E+W+S

F298. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F297Words in s. 35 and sidenote substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 21; 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))

F298S. 35 repealed (24.7.2005 for E.W. and otherwise prosp.) by Railways Act 2005 (c. 14), ss. 14(1)(c), 59, 60, Sch. 13 Pt. 1 (with s. 14(4)(5), Sch. 11 para. 11(2)); S.I. 2005/1909 {art. 2}, Sch

Modifications etc. (not altering text)

C30S. 35: certain functions transferred to the Scottish Ministers (28.11.2005) by The Transfer of Rail Functions To The Scottish Ministers Order 2005 (S.I. 2005/598), art. 3, Sch. 1

36 Miscellaneous amendments of the Transport Act 1968.E+W+S+N.I.

(1)In section 10 of the M8Transport Act 1968, in subsection (1) (which specifies the powers of Passenger Transport Executives) after paragraph (vi) there shall be inserted—

(via) with the approval of the Authority, to enter into and carry out agreements with any person who is the operator of, or who has an estate or interest in, or right over, a network, station or light maintenance depot or some part of a network, station or light maintenance depot, in connection with the building, replacement, redevelopment, refurbishment, repair, maintenance, operation or staffing of the network, station or light maintenance depot or any part thereof;.

(2)After paragraph (viii) of that subsection there shall be inserted—

(viiia)to let locomotives and other rolling stock on hire to any person who is (within the meaning of Part I of the Railways Act 1993) the franchisee or the franchise operator under a franchise agreement to which the Executive is a party;

(viiib)to let locomotives and other rolling stock on hire to a person not falling within paragraph (viiia) above—

(a)for or in connection with the provision of railway passenger services within that area or within the permitted distance; or

(b)with the written consent of the Secretary of State, for or in connection with the provision of railway passenger services outside that area and beyond the permitted distance;

(viiic)with the approval of the Authority, to enter into and carry out agreements with the owner of any locomotive or other rolling stock concerning the persons to whom, or the terms on which, the locomotive or other rolling stock may be let on hire;.

(3)In section 20(2) of that Act, in paragraph (a) (duty of Passenger Transport Executive to keep under review the railway passenger services provided by the Railways Board for meeting the needs of persons travelling between places in the Executive’s passenger transport area etc) for the words “by the Railways Board" there shall be substituted the words “ by passenger service operators (within the meaning of Part I of the Railways Act 1993) ”.

(4)After section 23 of that Act there shall be inserted—

23A Interpretation of certain provisions of this Part relating to railways.

(1)For the purposes of sections 10, 15 and 20 of this Act—

(a)light maintenance depot”, “locomotive”, “network”, “railway passenger services”, “rolling stock” and “station” have the meaning given in section 83(1) of the Railways Act 1993; and

(b)operator” has the meaning given in section 6(2) of that Act.

(2)For the purposes of sections 10(1)(vi), 15(1)(d) and 20(2)(b), (4) and (6) of this Act “wholly-owned subsidiary” has the meaning given by section 736 of the M9Companies Act 1985..

(5)In section 159(1) of that Act (general interpretation), in the definition of “subsidiary" and “wholly-owned subsidiary", for the words “subject to section 51(5)" there shall be substituted the words “ subject to sections 23A(2) and 51(5) ”.

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Marginal Citations

ClosuresE+W+S+N.I.

37 Proposals to discontinue non-franchised etc. passenger services.E+W+S

F299. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F299S. 37 repealed (1.12.2006) by Railways Act 2005 (c. 14), ss. 59, 60, Sch. 13 Pt. 1 (with s. 14(4)(5), Sch. 11 para. 11(2)); S.I. 2006/2911, art. 2, Sch. (subject to the transitional and saving provisions in arts. 3-7)

38 Proposals to discontinue franchised etc. passenger services.E+W+S

F300. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F300S. 38 repealed (1.12.2006) by Railways Act 2005 (c. 14), ss. 59, 60, Sch. 13 Pt. 1 (with s. 14(4)(5), Sch. 11 para. 11(2)); S.I. 2006/2911, art. 2, Sch. (subject to the transitional and saving provisions in arts. 3-7)

39 Notification of proposals to close operational passenger networks.E+W+S

F301. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F301S. 39 repealed (1.12.2006) by Railways Act 2005 (c. 14), ss. 59, 60, Sch. 13 Pt. 1 (with s. 14(4)(5), Sch. 11 para. 11(2)); S.I. 2006/2911, art. 2, Sch. (subject to the transitional and saving provisions in arts. 3-7)

40 Proposals to close passenger networks operated on behalf of theAuthority.E+W+S

F302. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F302S. 40 repealed (1.12.2006) by Railways Act 2005 (c. 14), ss. 59, 60, Sch. 13 Pt. 1 (with s. 14(4)(5), Sch. 11 para. 11(2)); S.I. 2006/2911, art. 2, Sch. (subject to the transitional and saving provisions in arts. 3-7)

41 Notification of proposals to close railway facilities used in connection with passenger services.E+W+S

F303. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F303S. 41 repealed (1.12.2006) by Railways Act 2005 (c. 14), ss. 59, 60, Sch. 13 Pt. 1 (with s. 14(4)(5), Sch. 11 para. 11(2)); S.I. 2006/2911, art. 2, Sch. (subject to the transitional and saving provisions in arts. 3-7)

42 Proposals to close passenger railway facilities operated on behalf of the Authority.E+W+S

F304. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F304S. 42 repealed (1.12.2006) by Railways Act 2005 (c. 14), ss. 59, 60, Sch. 13 Pt. 1 (with s. 14(4)(5), Sch. 11 para. 11(2)); S.I. 2006/2911, art. 2, Sch. (subject to the transitional and saving provisions in arts. 3-7)

43 Notification to, and functions of, theSecretary of State and the relevantRail Passengers Committees.E+W+S

F305. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F305S. 43 repealed (1.12.2006 in so far as not already in force) by Railways Act 2005 (c. 14), ss. 59, 60, Sch. 13 Pt. 1 (with s. 14(4)(5), Sch. 11 para. 11(2)); S.I. 2006/2911, art. 2, Sch. (subject to the transitional and saving provisions in arts. 3-7)

44. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

F306. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)