19.—(1) Subject to paragraph (2), whilst respecting the requirements for management independence stipulated in regulation 8, the Office of Rail and Road or, in the case of a rail link facility, the Secretary of State, may establish a framework for the allocation of infrastructure capacity.
(2) The framework for the allocation of capacity referred to in paragraph (1) must, in the case of railway infrastructure comprised in a freight corridor established under Regulation (EU) No 913/2010 M1, be defined by the executive board of that corridor, within the meaning of that Regulation, and, in such a case, paragraph (1) does not apply.
(3) The infrastructure manager must, subject to paragraph (4), be responsible for the establishment of specific capacity allocation rules and for the process of allocating infrastructure capacity in respect of the railway infrastructure for which it has responsibility.
(4) If the infrastructure manager, in its legal form, organisation or decision-making functions, is not independent of any railway undertaking, the infrastructure manager must ensure that the functions referred to in this Part and Schedule 4 are performed by an allocation body that is independent in its legal form, organisation and decision-making from any railway undertaking.
(5) Subject to paragraph (11), any applicant may apply to the infrastructure manager for the allocation of infrastructure capacity.
(6) In order to use such capacity, an applicant which is not a railway undertaking must appoint a railway undertaking to conclude a contract with the infrastructure manager in accordance with paragraph (14); this is without prejudice to the right of the applicant to conclude an agreement with the infrastructure manager under regulation 22(1).
(7) An applicant applying for infrastructure capacity with a view to operating an international passenger service must give notice of that fact to the infrastructure manager concerned and to the Office of Rail and Road and provide such information as the Office of Rail and Road may reasonably require or prescribe.
(8) When the Office of Rail and Road receives a notice from an applicant under paragraph (7), it must provide—
(a)any competent authority that has awarded a rail passenger service defined in a relevant public service contract;
(b)any railway undertaking which is a relevant public service operator; and
(c)any other competent authority with a right to limit access along the route of the international passenger service notified under paragraph (7),
with a copy of the information in relation to that service provided to it in accordance with that paragraph.
(9) The infrastructure manager must ensure that the allocation process is conducted in accordance with the timetable set out in Schedule 4.
(10) Subject to paragraph (12), an applicant who has been granted capacity by the infrastructure manager, whether that capacity is in the form of—
(a)a framework agreement made in accordance with regulation 21 specifying the characteristics of the infrastructure capacity granted; or
(b)specific infrastructure capacity in the form of a train path,
must not trade that capacity with another applicant or transfer it to another undertaking or service.
(11) Any person who trades in capacity contrary to the provisions of paragraph (10) is not entitled to apply for capacity under paragraph (5) for the period of the working timetable period to which the allocation of capacity transferred related.
(12) The use of capacity by a railway undertaking on behalf of an applicant who is not a railway undertaking, in order to further the business of that applicant, is not a transfer for the purposes of paragraph (10).
(13) The infrastructure manager must not allocate capacity in the form of specific train paths for any period in excess of one working timetable period.
(14) Any railway undertaking engaged in rail transport services must conclude the necessary agreements under public or private law with the infrastructure manager of the railway infrastructure used.
(15) The respective rights and obligations of infrastructure managers and applicants in respect of any allocation of capacity must be laid out in a contract.
(16) The infrastructure manager must—
(a)ensure that infrastructure capacity is allocated on a fair and non-discriminatory basis;
(b)ensure that the agreements referred to in paragraph (14) are non-discriminatory, transparent, and in accordance with the requirements of these Regulations; and
(c)respect the confidentiality of information supplied as part of the capacity allocation process, including the identity of other applicants during disclosure under regulation 23(5), unless the relevant applicant has agreed to disclosure of their identity.
(17) The infrastructure manager may set requirements with regard to applicants to ensure that its legitimate expectations about future revenues and utilisation of the infrastructure capacity are safeguarded.
(18) Requirements under paragraph (17)—
(a)must be appropriate, transparent and non-discriminatory;
(b)must be specified in the network statement; and
(c)may only include the provision of a financial guarantee by an applicant if the level of such guarantee does not exceed an appropriate level which is proportional to the contemplated level of activity of the applicant, and where such guarantee provides assurance of the applicant's capability to prepare compliant bids for infrastructure capacity.
F1(19) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(20) In reserving infrastructure capacity for the purposes of scheduled track maintenance, as requested under regulation 22(5), the infrastructure manager must take into account the effect of that reservation on applicants.
Textual Amendments
F1Reg. 19(19) omitted (4.3.2024) by virtue of The Railways (Revocation and Consequential Provision) Regulations 2024 (S.I. 2024/127), regs. 1(2), 4(3)
Marginal Citations
M1O.J. No. L 276, 20.10.10, p. 22; amended by Regulation (EU) No 1316/2013 of the European Parliament and of the Council of 11th December 2013 establishing the Connecting Europe Facility, amending Regulation (EU) No 913/2010 and repealing Regulations (EC) No 680/2007 and (EC) No 67/2010, O.J. L 348, 20.12.13, p. 129.
20.—(1) This regulation applies to the allocation of infrastructure capacity in the form of a train path crossing more than one network [F2, including a train path which crosses between a network in the United Kingdom and a network in the European Union].
(2) Infrastructure managers must—
(a)co-operate to enable the efficient creation and allocation of infrastructure capacity to which this regulation applies, including under a framework agreement; and
(b)before consulting on the draft working timetable in relation to relevant train paths, agree with the other relevant infrastructure managers which international train paths are to be included in that draft working timetable.
[F3(2A) Infrastructure managers required to cooperate in the allocation of infrastructure capacity crossing more than one network by paragraph (2)(a), must provide, without delay, all the information requested by the Office of Rail and Road which is necessary for the purpose of handing an appeal or an own initiative investigation on issues of access or charging relating to an international train path.]
(3) The international train paths referred to in paragraph (2)(b) may only be adjusted if absolutely necessary.
(4) The infrastructure managers must establish such procedures as are appropriate, in accordance with the requirements set out in these Regulations, to enable the co-operation referred to in paragraph (2)(a) to take place, and such procedures must include coordination with representatives of the infrastructure managers whose allocation decisions have an impact on one or more other infrastructure managers.
(5) Allocation of infrastructure capacity to which this regulation applies must be without prejudice to the specific rules contained in [F4Regulation (EU) No 913/2010 of the European Parliament and of the Council of 22 September 2010 concerning a European rail network for competitive freight].
(6) The procedures established by virtue of paragraph (4) may permit appropriate representatives of infrastructure managers outside the [F5United Kingdom] to be associated with these procedures.
F6(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) The infrastructure managers must provide the Office of Rail and Road with sufficient information about the development of common principles and practices for the allocation of railway infrastructure and from any IT-based allocation systems, to allow it to perform its regulatory functions [F7under paragraph 12 and Part 6].
(9) At any meeting or other activity undertaken to facilitate the allocation of infrastructure capacity across more than one network, decisions may only be taken by representatives of the relevant infrastructure managers.
(10) In acting in accordance with paragraph (2) the infrastructure managers must assess the need for and, where necessary, propose and organise international train paths in such a way as to enable ad hoc capacity for freight services to be granted in accordance with regulation 24.
(11) The prearranged train paths referred to in paragraph (2)(b) must be made available to applicants through any infrastructure manager who participates in the international coordination of train paths referred to in this regulation.
[F8(12) The Office of Rail and Road must review decisions and practices of infrastructure managers required to co-operate over train services which cross more than one network under this regulation, that implement provisions in these Regulations or which otherwise facilitate international rail transport.]
Textual Amendments
F2Words in reg. 20(1) substituted (31.12.2020) by The Railways (Access, Management and Licensing of Railway Undertakings) (Amendments etc.) (EU Exit) Regulations 2019 (S.I. 2019/518), regs. 1(3)(b), 12(a); 2020 c. 1, Sch. 5 para. 1(1)
F3Reg. 20(2A) inserted (31.12.2020) by The Railways (Access, Management and Licensing of Railway Undertakings) (Amendments etc.) (EU Exit) Regulations 2019 (S.I. 2019/518), regs. 1(3)(b), 12(b); 2020 c. 1, Sch. 5 para. 1(1)
F4Words in reg. 20(5) substituted (31.12.2020) by The Railways (Access, Management and Licensing of Railway Undertakings) (Amendments etc.) (EU Exit) Regulations 2019 (S.I. 2019/518), regs. 1(3)(b), 12(c); 2020 c. 1, Sch. 5 para. 1(1)
F5Words in reg. 20(6) substituted (31.12.2020) by The Railways (Access, Management and Licensing of Railway Undertakings) (Amendments etc.) (EU Exit) Regulations 2019 (S.I. 2019/518), regs. 1(3)(b), 12(d); 2020 c. 1, Sch. 5 para. 1(1)
F6Reg. 20(7) omitted (31.12.2020) by virtue of The Railways (Access, Management and Licensing of Railway Undertakings) (Amendments etc.) (EU Exit) Regulations 2019 (S.I. 2019/518), regs. 1(3)(b), 12(e); 2020 c. 1, Sch. 5 para. 1(1)
21.—(1) Subject to the requirements of this regulation, F9..., an infrastructure manager may enter into a framework agreement with an applicant for the purpose of specifying the characteristics of the infrastructure capacity required by and offered to the applicant over a period of time exceeding one working timetable period.
(2) An applicant who is a party to a framework agreement must apply for the allocation of capacity in accordance with the terms of that agreement.
(3) Whilst seeking to meet the legitimate commercial needs of the applicant and without prejudice to paragraph (11), a framework agreement must not specify any train path in detail.
(4) The effect of a framework agreement must not be such as to preclude the use of the railway infrastructure subject to that framework agreement by other applicants or services.
(5) A framework agreement must contain terms permitting the amendment or limitation of any condition contained in that framework agreement if such amendment or limitation would enable better use to be made of the railway infrastructure.
(6) A framework agreement may contain penalties applicable on modification or termination of the agreement by any party.
(7) Other than in circumstances described in paragraphs (8), (9) and (10), a framework agreement made in accordance with paragraph (1) will in principle be for a period of five years, renewable for periods equal to its original duration, provided that the infrastructure manager may agree to a shorter or longer period in specific cases.
(8) Subject to paragraphs (9) and (10), a framework agreement for a period longer than five years must be justified by the existence of commercial contracts, specialised investments or risks.
(9) Subject to paragraph (10), a framework agreement in relation to railway infrastructure which has been designated in accordance with regulation 25(2) (“a designated infrastructure framework agreement”) may be for a period of up to fifteen years where there is a substantial and long-term investment justified by the applicant.
(10) A designated infrastructure framework agreement may be for a period in excess of fifteen years in exceptional circumstances, in particular where there is large-scale and long-term investment and particularly where such investment is covered by contractual commitments including a multi-annual amortisation plan.
(11) An application for a designated infrastructure framework agreement to which paragraph (9) or (10) applies may specify the capacity characteristics, including the frequency, volume and quality of the train paths to be provided to the applicant for the duration of the framework agreement, in sufficient detail to ensure that these are clearly established.
(12) The infrastructure manager may reduce capacity reserved under the terms of a designated infrastructure framework agreement to which paragraph (9) or (10) applies where, over a continuous period of at least one month, that capacity has been used less than the threshold quota stipulated in the network statement.
(13) Whilst respecting commercial confidentiality, the general nature of each framework agreement must be made available by the infrastructure manager to any interested party.
(14) This regulation is without prejudice to section 18 of the Act M2 in the case of a framework agreement which is an access contract to which that section applies.
(15) Before entering into a framework agreement in relation to a rail link facility, and before amending any such agreement, the infrastructure manager and the applicant must obtain the approval of the Office of Rail and Road.
(16) Nothing in these Regulations has the effect of applying any of sections 17 to 22C of the Act M3 to a rail link facility.
F10(17) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F10(18) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F10(19) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F10(20) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F10(21) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F9Words in reg. 21(1) omitted (31.12.2020) by virtue of The Railways (Access, Management and Licensing of Railway Undertakings) (Amendments etc.) (EU Exit) Regulations 2019 (S.I. 2019/518), regs. 1(3)(b), 13(a); 2020 c. 1, Sch. 5 para. 1(1)
F10Reg. 21(17)-(21) omitted (4.3.2024) by virtue of The Railways (Revocation and Consequential Provision) Regulations 2024 (S.I. 2024/127), regs. 1(2), 4(4)
Marginal Citations
M21993 c. 43. Section 18 is amended by the Transport Act 2000 (c. 38), sections 212(6) and 230(1) and (2), Schedule 27, paragraphs 17 and 22 and Schedule 31, Part 4; the Railways and Transport Safety Act 2003 (c. 20), Schedule 2, Part 1, paragraphs 1 and 3(b); the Railways Act 2005 (c. 14), Schedule 1, Part 1, paragraph 12(1) and (3); S.I. 2005/3049, Schedule 1, Part 1, paragraph 4(c); and S.I. 2015/1682, Schedule, Part 1, paragraph l(z).
M3Section 17 is amended by the Transport Act 2000 (c. 38), section 233(1), Schedule 27, paragraphs 17 and 21, and Schedule 31, Part 4; the Railways Act 2005 (c. 14), Schedule 1, Part 1, paragraph 12(1) and (2) and Schedule 11, paragraphs 1 and 3(a); S.I. 1998/1340, regulation 21(5); S.I. 2005/3049, Schedule 1, Part 1, paragraph 4(a) and (b); and S.I. 2015/1682, Schedule, Part 1, paragraph 1(y). Sections 19 to 22A and 22C are amended by S.I. 2015/1682, Schedule, Part 1, paragraph 1(aa) to (gg). Section 19 is amended by the Transport Act 2000 sections 230(3) and (4) and 233(2) and Schedule 31, Part 4; the Railways and Transport Safety Act 2003 (c. 20), Schedule 2, Part 1, paragraphs 1 and 3; and the Railways Act 2005, Schedule 1, Part 1, paragraph 12 and Schedule 11, paragraphs 1 and 3(b). Section 19A was inserted by the Transport Act 2000, section 231(1). Section 20 is amended by the Transport Act 2000, Schedule 27, paragraphs 17 and 23 and Schedule 31, Part 4; and the Railways and Transport Safety Act 2003, Schedule 2, Part 1, paragraphs 1, 3 and 9. Section 21 is amended by the Railways and Transport Safety Act 2003, Schedule 2, Part 1, paragraphs 1, 3 and 10, and Schedule 8. Section 22 is amended by the Competition Act 1988 (c. 41), Schedule 10, Part 4, paragraph 15; the Transport Act 2000, section 232(1) and Schedule 31, Part 4; the Railways and Transport Safety Act 2003, Schedule 2, Part 1, paragraphs 1 and 3; and S.I. 2014/892, Schedule 1, Part 2, paragraphs 99 and 104. Sections 22A, 22B and 22C were inserted by the Transport Act 2000 section 232(2). Section 22A is amended by S.I. 2005/3049, Schedule 1(1), paragraph 4(d). Section 22C is amended by the Railways and Transport Safety Act 2003, Schedule 2, Part 1, paragraphs 1 and 3.
22.—(1) Applicants may submit a request to the infrastructure manager for an agreement granting rights to use railway infrastructure against a charge as provided for in Part 4.
(2) An applicant wishing to apply for infrastructure capacity must submit an application to the infrastructure manager in accordance with the timetable for the allocation process set out in Schedule 4.
(3) Without prejudice to Regulation (EU) No 913/2010 M4 applicants may submit a request to a single infrastructure manager, or to a joint body established by the relevant infrastructure managers, for infrastructure capacity in the form of a train path crossing more than one network.
(4) Where an application under paragraph (3) is made to a single infrastructure manager, that infrastructure manager is permitted to act on behalf of that applicant in seeking the infrastructure capacity requested.
(5) Requests for infrastructure capacity to enable maintenance of the network to be carried out must be submitted in accordance with the timetable set out in Schedule 4.
(6) The infrastructure manager must inform interested parties as soon as possible about the unavailability of infrastructure capacity due to unscheduled maintenance work.
Marginal Citations
M4O.J. No. L 276, 20.10.10, p. 22; amended by Regulation (EU) No 1316/2013 of the European Parliament and of the Council of 11th December 2013 establishing the Connecting Europe Facility, amending Regulation (EU) No 913/2010 and repealing Regulations (EC) No 680/2007 and (EC) No 67/2010, O.J. L 348, 20.12.2013, p. 129.
23.—(1) The infrastructure manager must, so far as possible—
(a)meet all requests for infrastructure capacity, including those requests for train paths which cross more than one network; and
(b)in so doing, take account of all constraints on applicants, including the economic effect on their business.
(2) The infrastructure manager may give priority to specific services within the scheduling and coordination process, but only in accordance with the provisions in regulations 25 and 26.
(3) The infrastructure manager must consult interested parties about the draft working timetable, and must allow such interested parties a period of at least one calendar month to submit their comments.
(4) In the event of conflict between different requests for infrastructure capacity, the infrastructure manager must attempt, in consultation with the appropriate applicants, and through coordination of the requests, to ensure the best possible matching of all requirements and, in so far as it is reasonable to do so, may propose alternative infrastructure capacity from that requested in order to resolve the conflict.
(5) Consultation under paragraph (4) must be based on the disclosure by the infrastructure manager of the following information within a reasonable time, free of charge and in written or electronic form—
(a)train paths requested by all other applicants on the same routes;
(b)train paths allocated on a preliminary basis to all other applicants on the same routes;
(c)alternative train paths proposed on the relevant routes in accordance with paragraph (4); and
(d)full details of the criteria being used in the capacity allocation process.
(6) Information disclosed by the infrastructure manager in accordance with paragraph (5) must not disclose the identity of other applicants, unless the applicants concerned have agreed to such disclosure.
(7) The infrastructure manager must facilitate the establishment and operation of a dispute resolution system, which must be set out in the network statement, to resolve disputes about the allocation of infrastructure capacity promptly and, where that system is applied, a decision on the matters in dispute must be reached no later than ten working days after the final submission of all relevant information in accordance with that system.
(8) The dispute resolution system provided for under paragraph (7) is without prejudice to the right of appeal to the Office of Rail and Road under regulation 32(1).
(9) The infrastructure manager must take such measures as are appropriate to deal with any concerns about the allocation process raised by interested parties.
(10) For the purposes of this regulation “interested parties” includes—
(a)all applicants for infrastructure capacity as part of the specific allocation process to which the draft working timetable relates; and
(b)other parties who have indicated to the Office of Rail and Road, in such form or manner as that Office may from time to time require, that they wish to have the opportunity to comment as to the effect that the working timetable might have on their ability to procure rail services during the working timetable period to which the draft working timetable relates.
24.—(1) In addition to making an application for capacity in accordance with the annual timetable process described in regulation 22, an applicant may submit ad hoc requests for individual train paths to the infrastructure manager.
(2) The infrastructure manager must respond to a request described in paragraph (1) as quickly as possible and, in any event, no later than five working days from receipt of the request.
(3) The infrastructure manager must make available to all potential applicants for such individual train paths information about available spare capacity on the network for which it is responsible.
(4) The infrastructure manager must, including in the case of congested infrastructure, undertake an evaluation of the need for reserve capacity to be kept available within the final working timetable to enable it to respond rapidly to foreseeable ad hoc requests for infrastructure capacity.
25.—(1) Subject to paragraph (2), all infrastructure capacity must be available for the use of all types of rail transport service which conform to the characteristics necessary for use of that railway infrastructure, as defined in the infrastructure manager's network statement.
(2) Subject to the provisions set out in paragraph (3), and F11... an infrastructure manager may designate particular railway infrastructure for use by specified types of rail service and, once the railway infrastructure is so designated, may give priority to that specified type of rail service in the allocation of infrastructure capacity.
(3) Those provisions are that—
(a)suitable alternative routes for other types of rail transport service must exist and be available;
(b)before making such a designation the infrastructure manager must consult—
(i)the Secretary of State;
(ii)where an element of the railway infrastructure which it is proposed to designate is in Scotland, Scottish Ministers;
(iii)the Office of Rail and Road; and
(iv)all other interested parties; and
(c)such designation must not prevent the use of that designated railway infrastructure by other types of rail transport service when capacity is available.
Textual Amendments
F11Words in reg. 25(2) omitted (31.12.2020) by virtue of The Railways (Access, Management and Licensing of Railway Undertakings) (Amendments etc.) (EU Exit) Regulations 2019 (S.I. 2019/518), regs. 1(3)(b), 14; 2020 c. 1, Sch. 5 para. 1(1)
26.—(1) Where, after the coordination of requests for capacity and consultation with the applicants in accordance with regulation 23(4), it is not possible for the infrastructure manager to satisfy requests for infrastructure capacity adequately, the infrastructure manager must declare that element of the railway infrastructure on which such requests cannot be satisfied to be congested.
(2) Where, during the preparation of the working timetable for the next timetable period, the infrastructure manager considers that an element of the railway infrastructure is likely to become congested during the period to which that working timetable relates, the infrastructure manager must declare that element of the railway infrastructure to be congested.
(3) When railway infrastructure has been declared to be congested under the provisions of this regulation the infrastructure manager must inform—
(a)existing users of that railway infrastructure;
(b)new applicants for infrastructure capacity which includes that element of the railway infrastructure which has been declared to be congested;
(c)the Office of Rail and Road;
(d)the Secretary of State; and
(e)where any element of the railway infrastructure which has been declared to be congested is in Scotland, Scottish Ministers.
(4) Where railway infrastructure has been declared to be congested in accordance with paragraph (1) or (2), the infrastructure manager must undertake a capacity analysis of the congested infrastructure, as described in regulation 27, unless a capacity enhancement plan, as described in regulation 28, is in the process of being implemented.
(5) When an element of the railway infrastructure has been declared to be congested in accordance with paragraph (1) or (2) and either—
(a)a charge as described in paragraph 1(8) of Schedule 3 has not been levied; or
(b)the charge described in sub-paragraph (a) has been levied but has not achieved a satisfactory result,
the infrastructure manager may set priority criteria for the allocation of infrastructure capacity which includes that congested element of the railway infrastructure.
(6) The priority criteria referred to in paragraph (5) must—
(a)take account of the importance of a service to society, relative to any other service which will consequently be excluded; and
(b)ensure that freight services, and in particular international freight services, are given adequate consideration in the determination of those criteria.
(7) For the purposes of paragraph (6) an international freight service is a transport service where all wagons of the train cross [F12the border between the United Kingdom and the European Union]; the train may be joined or split and the different sections of the train may have different origins and destinations.
(8) If during the course of the working timetable period to which the declaration of congested infrastructure relates, but before the completion of the capacity analysis, the congestion is resolved, the infrastructure manager may revoke the declaration made in accordance with paragraph (1).
(9) Where paragraph (8) applies, the infrastructure manager must inform the persons described in paragraph (3) that the declaration has been revoked.
Textual Amendments
27.—(1) Where required in accordance with regulation 26(4), the infrastructure manager must carry out a capacity analysis of the congested infrastructure in order to identify the reasons for the congestion and the measures which might be taken in the short and medium term to ease that congestion.
(2) In conducting the capacity analysis, and in order to identify the reasons for the congestion, the infrastructure manager must consider the—
(a)characteristics of the congested infrastructure;
(b)operating procedures used on that railway infrastructure; and
(c)characteristics of the different rail services which have been allocated capacity to operate on that railway infrastructure.
(3) In seeking to determine measures to alleviate congestion the infrastructure manager must consider, in particular—
(a)re-routing of services;
(b)re-timing of services;
(c)alterations to the line-speed; and
(d)railway infrastructure improvements.
(4) The infrastructure manager must consult the Secretary of State and, where any part of the capacity analysis relates to railway infrastructure in Scotland, the Scottish Ministers, during the preparation of the capacity analysis.
(5) The infrastructure manager must complete the capacity analysis within six months from the date on which the railway infrastructure is declared to be congested in accordance with regulation 26(1) or (2) and make the findings of the analysis available to the parties described in regulation 26(3).
28.—(1) The infrastructure manager must, within six months of the publication of a capacity analysis in accordance with regulation 27, produce a capacity enhancement plan.
(2) In producing the capacity enhancement plan, the infrastructure manager must—
(a)consult such interested parties as it considers necessary, including those described in regulation 26(3); and
(b)seek the prior approval of the appropriate Minister at least one month before the deadline for completion of the plan.
(3) The capacity enhancement plan must identify the—
(a)reasons for the congestion;
(b)likely future development of traffic;
(c)constraints on railway infrastructure development; and
(d)options for and costs of enhancing the capacity, including the potential effect on access charges.
(4) On the basis of a cost benefit analysis of the potential measures for action identified in the capacity enhancement plan, that plan must include—
(a)details of the action to be taken to enhance the capacity of the congested infrastructure; and
(b)a timetable for the completion of the detailed measures identified in accordance with sub-paragraph (a).
(5) Subject to paragraph (6), if the utilisation of capacity on that element of the railway infrastructure which is the subject of the capacity enhancement plan attracts a scarcity charge, in accordance with paragraph 1(8) of Schedule 3, the infrastructure manager must cease the levying of such charge in situations where—
(a)paragraph (1) applies but a capacity enhancement plan for that part of the railway infrastructure which is subject to the scarcity charge has not been produced, as required by this regulation; or
(b)the infrastructure manager fails to make progress with implementation of those areas of the action plan produced in accordance with paragraph (4).
(6) Paragraph (5) does not apply where—
(a)the action plan produced in accordance with paragraph (4) cannot be implemented for reasons beyond the immediate control of the infrastructure manager; or
(b)the options identified in that action plan are not economical or financially viable,
provided that prior approval to continue to levy the scarcity charge is obtained from the Office of Rail and Road or, in the case of a rail link facility, the Secretary of State.
(7) At the end of the six month period starting with the publication of the capacity analysis in accordance with regulation 27, whether or not the approval sought under paragraph (2)(b) has been received, the infrastructure manager must provide the parties consulted under paragraph (2)(a) with a copy of the plan and the timetable for completion of the measures identified to resolve the congestion.
(8) For the purposes of this regulation the “appropriate Minister” means—
(a)where the capacity enhancement plan relates wholly to railway infrastructure in Scotland, the Scottish Ministers;
(b)where the capacity enhancement plan relates in part to railway infrastructure in Scotland, the Secretary of State and the Scottish Ministers acting jointly; and
(c)in all other cases the Secretary of State.
29.—(1) Subject to paragraph (2), the infrastructure manager must, in particular where railway infrastructure has been declared to be congested in accordance with regulation 26, require an applicant who has, over a period of at least one month, used a train path less often than the threshold quota stipulated in the network statement, to surrender that train path.
(2) Paragraph (1) does not apply if, in the view of the infrastructure manager, the failure to use the train path in accordance with the threshold quota stipulated in the network statement arose as a result of non-economic reasons outside the control of the applicant.
(3) The infrastructure manager must in the network statement specify conditions under which previous levels of capacity utilisation will be taken into account in determining the priorities to be used in making decisions on the allocation of capacity.
30.—(1) In the event of disruption to train movements caused by technical failure or accident, the infrastructure manager must take all such steps as are necessary to restore the normal operation of the network.
(2) The infrastructure manager must have in place a contingency plan listing the various bodies who are required to be informed in the event of a serious incident or serious disruption to train movements.
(3) The infrastructure manager may, in the event of an emergency and where absolutely necessary on account of a breakdown which renders a part of the railway infrastructure temporarily unusable, withdraw allocated train paths without warning and with immediate effect for such period as is necessary to repair the affected infrastructure.
(4) Subject to paragraph (5), the infrastructure manager may, if it deems it to be necessary, require railway undertakings to make available to it such resources as the infrastructure manager considers appropriate to restore the normal operation of the network as quickly as possible.
(5) Where a contract or framework agreement between a railway undertaking and the infrastructure manager incorporates conditions as to the special measures to be taken in the event of disruption, the resources required by the infrastructure manager under paragraph (4) must be in accordance with those conditions.