TRANSPORT Citation, commencement and extent 1 1 These Regulations may be cited as the Railways Regulations 1992 and shall come into force on 1st January 1993. 2 With the exception of paragraphs 6 to 8 of Schedule 2, these Regulations do not extend to Northern Ireland. Purpose and interpretation 2 1 The purpose of these Regulations is to provide for the implementation of Council Directive 91/440/ EEC of 29th July 1991 on the development of the Community’s railways (hereinafter referred to as “the Council Directive”) and accordingly, save where the context otherwise requires, expressions used which are also used in that Directive have the same meaning. 2 In these Regulations— “the Concessionaires”, “the tunnel system” and “shuttle service” have the same meaning as in the Channel Tunnel Act 1987 ; “the International Rail Regulator” means the officer appointed under regulation 7(1) by the Secretary of State; “access and transit rights” or “transit rights” means access and transit rights or transit rights in relation to the use of railway facilities and ancillary services; “railway facility” means any track, station or light maintenance depot; “ancillary service” means any service which is necessary for giving full effect to the right of any person to use any track, station or light maintenance depot; “track” means the permanent way of any railway, taken together with the ballast, sleepers and metals laid thereon; and any reference to track includes a reference to— any level crossings, bridges, viaducts, tunnels, culverts, retaining walls, or other structures used or to be used for the support of, or otherwise in connection with, track; and any walls, fences or other structures bounding the railway or bounding any adjacent or adjoining property; “station” means any railway station or railway passenger terminal and includes any forecourt, cycle store, car park or other land or premises appurtenant to, and used in connection with, a station; “light maintenance depot” means any premises which consist of or include the provision of light maintenance services, whether or not those premises also consist of or include other maintenance facilities; “light maintenance services” means services of any of the following descriptions, that is to say— the refuelling or cleaning of locomotives or other rolling stock; the carrying out of any day to day maintenance work required to prepare locomotives or other rolling stock for services each day; or the carrying out of any other maintenance work to locomotives or rolling stock of a kind which would not normally require the locomotive or rolling stock to be taken out of service for more than seven days; “train” includes any locomotive and any rolling stock of any description; “rolling stock” means any carriage, wagon or other vehicle used on track and includes a locomotive; and “locomotive” means a locomotive used for propelling rolling stock along track and includes a mobile traction unit. 3 In these Regulations, unless the context otherwise requires, any reference to— a a numbered regulation or a numbered schedule is a reference to the regulation or schedule bearing that number in these Regulations; b a numbered paragraph is a reference to the paragraph bearing that number in the regulation or schedule in which the reference appears. Scope 3 These Regulations apply to the management of railway infrastructure in Great Britain and to the rail transport activities in Great Britain of railway undertakings established or to be established in a member State other than— i railway undertakings whose activity is limited to the provision of solely urban, suburban or regional services; and ii the management of the tunnel system and the rail transport activity of the Concessionaires in respect of any shuttle service. Modification of enactments concerning the powers of the Secretary of State and the obligations of the British Railways Board 4 1 The powers of the Secretary of State in respect of the British Railways Board and the obligations of the British Railways Board in relation to the Secretary of State under any of the provisions specified in paragraph (2) shall only apply to any activities of the British Railways Board in respect of any of the matters specified in paragraph (3) of Article 5 of the Council Directive to the extent necessary to ensure consistency with general policy guidelines or investment and financing plans, determined by the Secretary of State. 2 The provisions mentioned in paragraph (1) are— section 4(2) of the Transport Act 1962 ; section 5(2) of the Transport Act 1962; section 11(3) and (4) of the Transport Act 1962 and section 49 of the Transport Act 1968; section 12(3) of the Transport Act 1962; section 14(3) and (4) of the Transport Act 1962; section 17(1) of the Transport Act 1962; section 27(3), (4) and (5) of the Transport Act 1962; section 45(5) and (6) of the Transport Act 1968 ; section 50(1) and (2) of the Transport Act 1968; section 144 of the Transport Act 1968; and section 1 of the Transport Act 1981 . Separation of accounts between transport operations and infrastructure management and prohibition of transfer of state aid 5 1 Any railway undertaking which is also an infrastructure manager shall— a prepare and maintain accounts for business relating to the provision of transport services which are separate from its accounts for business relating to the management of railway infrastructure; and b ensure that there is no transfer of state aid granted to the undertaking between the provision of transport services and the management of railway infrastructure. 2 Without prejudice to any civil remedy that might be available to any person, a railway undertaking which, without reasonable excuse, contravenes or fails to comply with paragraph (1) of this regulation shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale. Calculation of, and rules for the determination of, fees for the use of railway infrastructure 6 1 Infrastructure managers shall charge fees for the use by railway undertakings and international groupings of railway infrastructure for which they are responsible, which shall be calculated so as to avoid any discrimination between railway undertakings and may, in particular, take into account the mileage, the composition of the train and any specific requirements in terms of such factors as speed, axle load and the degree or period of utilisation of the infrastructure. 2 The fees shall be determined in accordance with rules specified in Schedule 1. International Rail Regulator 7 1 The Secretary of State shall appoint an officer to be known as “the International Rail Regulator” to perform the functions conferred on him by these Regulations. 2 The Secretary of State may give general directions indicating considerations to which the International Rail Regulator should have particular regard in cases where his functions are exercisable under these Regulations. 3 An appointment of a person to hold office as the International Rail Regulator shall be for a term not exceeding five years; but previous appointment to that office shall not affect eligibility for re-appointment. 4 The Secretary of State may remove any person from office as the International Rail Regulator on the ground of incapacity or misbehaviour. 5 Subject to paragraphs (3) and (4), a person appointed as the International Rail Regulator shall hold and vacate office as such in accordance with the terms of his appointment. 6 The provisions of Schedule 2 shall have effect with respect to the International Rail Regulator. 7 At any time when there is no person holding office as the International Rail Regulator the functions conferred on the holder of that office by these Regulations shall be exercisable by the Secretary of State. Access and transit rights 8 1 Any international grouping may apply to any infrastructure manager— a in the case of a grouping which includes a railway undertaking established in the United Kingdom for such access and transit rights; or b in the case of any other grouping, for such transit rights, as may be necessary for the provision of international services between the member States where the undertakings constituting the grouping are established. 2 Any railway undertaking established or to be established in a member State other than the United Kingdom may apply to any infrastructure manager for the grant of such access and transit rights as may be necessary for the purpose of the operation of international combined transport goods services. 3 On an application under paragraph (1) or (2) the infrastructure manager shall, subject to paragraph (4), grant the rights applied for unless it would prevent the operation of services already provided by the infrastructure manager or for which access or transit rights have already been granted by the infrastructure manager to any international grouping or railway undertaking either before or after the date of coming into force of these Regulations. 4 The infrastructure manager shall grant the access or transit rights by the conclusion of an agreement with the international grouping or railway undertaking covering the necessary administrative, technical and financial matters to regulate traffic control and safety issues concerning the international services to be provided by them. 5 The terms and conditions of agreements concluded pursuant to paragraph (4) shall not be discriminatory between railway undertakings or between railway undertakings and the infrastructure manager as a provider of rail transport services. 6 It shall be the duty of any infrastructure manager which grants access or transit rights to take such steps as are necessary to secure the inclusion in the agreement by which such rights are granted of such conditions to be complied with by the international grouping or railway undertaking to which the rights are granted, and to secure such modifications of those conditions from time to time, as are necessary to ensure the protection of people from the dangers arising from the operation of railways. 7 The international grouping or railway undertaking to which access or transit rights are granted shall comply with the conditions included in the agreement by which such rights are granted in accordance with paragraph (6). 8 Before access or transit rights are granted the applicant international grouping or railway undertaking shall lodge with the infrastructure manager a document indicating how it would ensure that the conditions to be included in the agreement in accordance with paragraph (6) will be complied with (hereinafter referred to as “the railway safety case”) and the infrastructure manager shall send a copy of the railway safety case to the Health and Safety Executive not less than 28 days (or such lesser number of days as the Executive may agree) before the grant of the access or transit rights. 9 The infrastructure manager shall not grant the access or transit rights applied for until it has agreed the railway safety case with the international grouping or railway undertaking and unless it is satisfied that the railway safety case so agreed at that time when implemented will ensure that the conditions to be included in the agreement in accordance with paragraph (6) are complied with by the international grouping or railway undertaking. 10 The infrastructure manager and the international grouping or railway undertaking to which the rights are granted shall take such steps as are necessary to secure that the railway safety case so agreed is from time to time modified to take account of any modification of the conditions referred to in paragraph (6) or as may appear from time to time necessary to ensure that those conditions are complied with by the international grouping or railway undertaking. 11 A failure on the part of the railway undertaking or international grouping to fulfil any provision of the railway safety case, as it may have been agreed from time to time, may in any civil or criminal proceedings be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question in those proceedings. 12 Any infrastructure manager which grants access or transit rights under this regulation shall so operate its control and safety systems as to take account of the services operated in exercise of such rights. Appeals and disputes 9 1 Where an infrastructure manager refuses or fails to grant the rights applied for under paragraph (1) or (2) of regulation 8 the applicant international grouping or railway undertaking may by notice in writing appeal to the International Rail Regulator. 2 A copy of the notice of appeal shall be sent to the infrastructure manager. 3 On an appeal under paragraph (1), the International Rail Regulator after considering the representations of the appellant and the infrastructure manager shall, if he is satisfied that the rights applied for would not prevent the operation of services already provided by the infrastructure manager or for which access or transit rights have already been granted by the infrastructure manager to any international grouping or railway undertaking either before or after the date of coming into force of these Regulations, by notice in writing to the infrastructure manager, require it to grant the rights applied for subject to the conclusion of the agreement mentioned in paragraph (4) of regulation 8. 4 In the event of a dispute in the course of negotiations concerning the conclusion of, or modification of, any such agreement as is mentioned in paragraph (4) of regulation 8, other than a dispute falling within paragraph (7), including a refusal by an infrastructure manager to conclude any such agreement, any party to the negotiations may by notice in writing, a copy of which shall be sent to the other party or parties, refer the matter to the International Rail Regulator whose decision on the matter, including a decision as to the terms or conditions of the agreement or modification (including such terms or conditions as specified by him) or requiring the infrastructure manager to conclude an agreement on specified terms and conditions (including as aforesaid), shall be binding on all the parties to the negotiations. 5 In the event of a dispute concerning the interpretation, effect or application of any such agreement as is mentioned in paragraph (4) of regulation 8, if the agreement so provides, any party to the agreement may by notice in writing a copy of which shall be sent to the other party or parties refer the matter to the International Rail Regulator whose decision shall be binding on the parties to the agreement. 6 If on a reference to the International Rail Regulator of any dispute under the preceding provisions of this regulation a question arises as to any matter which may, in the opinion of the International Rail Regulator, have safety implications he shall refer the question to the Health and Safety Executive whose opinion on the question shall be taken into account by the International Rail Regulator. 7 To the extent that a dispute during the course of negotiations concerning the conclusion of, or modification of, an agreement under paragraph (4) of regulation 8 or concerning the interpretation, effect or application of any such agreement is about the conditions required by paragraph (6) of regulation 8 to be included in the agreement or about the railway safety case, the dispute may by notice in writing, a copy of the notice being sent to the other party or parties to the dispute, be referred to the Secretary of State who shall consult the Health and Safety Executive for its opinion on the matter. 8 The decision of the Secretary of State on any such dispute as is mentioned in paragraph (7) shall be binding on all parties to the dispute. Statutory authority to run trains 10 Any international grouping or railway undertaking granted access or transit rights under these Regulations shall, if and to the extent that it would not, apart from this regulation, have statutory authority to run trains over any track in exercise of such rights, be taken to have statutory authority to do so. International groupings and railway undertakings granted access or transit rights not to be common carriers 11 International groupings and railway undertakings granted access or transit rights under these Regulations shall not in relation to the provision of international services in exercise of those rights be regarded as common carriers by railway. Application of enactments concerning railways 12 Paragraphs 2 (disapplication of enactments in the case of the Concessionaires and through service operators), 3 (extension of enactments in relation to through service operators) and 4 (modification of enactments applying to Concessionaires and through service operators) of Schedule 6 to the Channel Tunnel Act 1987 shall apply to international groupings and railway undertakings, other than the Concessionaires and the British Railways Board, in relation to the provison of international services in exercise of access or transit rights under these Regulations who are not through service operators within the meaning of that Schedule as they apply to those who are. International groupings 13 In the event of a contravention of, or a refusal or failure to comply with, a requirement or prohibition imposed by these Regulations on an international grouping— a where the contravention, or refusal or failure to comply would be an offence under these regulations or under the Health and Safety at Work etc Act 1974 each railway undertaking comprised in the grouping shall be guilty of the offence and liable to be proceeded against and punished accordingly; and b where a civil remedy would be available to any person in respect of any loss, damage or injury caused by the contravention or refusal or failure to comply, each railway undertaking comprised in the grouping shall be jointly and severally liable in respect of such loss, damage or injury. Civil proceedings 14 1 The obligation to comply with paragraph (1) of regulation 5, paragraph (1) of Regulation 6 or the rules specified in Schedule 1, or to comply with paragraph (5), (6), (7), (8), (9), (10) or (12) of regulation 8, or with a notice under paragraph (3) or a decision under paragraph (4) or (8) of regulation 9 shall be a duty owed to any person who may be affected by a breach of that duty and shall be actionable by any such person who sustains loss, damage or injury caused by the breach at the suit or instance of that person. 2 In any proceedings brought against an infrastructure manager, international grouping or railway undertaking in pursuance of paragraph (1), it shall be a defence for it to prove that it took all reasonable steps and exercised all due diligence to avoid the breach of duty. 3 Without prejudice to the right which any person may have by virtue of paragraph (1) to bring civil proceedings in respect of any breach of duty, the obligation to comply shall be enforceable by civil proceedings by the International Rail Regulator for an injunction or for interdict or any other appropriate relief. Enforcement and offences 15 1 The enforcement and offences provisions of the Health and Safety at Work etc Act 1974 shall apply to the duty imposed by paragraph (6) of regulation 8 on any infrastructure manager and to any requirement or prohibition imposed by paragraph (7), (8), (9) or (10) of that regulation or by a decision under paragraph (8) of regulation 9, as if the duty was one of the duties to which a person was subject by virtue of sections 2 to 7 of that Act and as if the requirement or prohibition had been imposed by regulations made under section 15 of that Act. 2 The Health and Safety (Enforcing Authority) Regulations 1989 shall not apply to any breach of duty, requirement or prohibition referred to in paragraph (1). Offences by bodies corporate and Scottish partnerships 16 1 Where an offence under these Regulations has been committed by a body corporate and it is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and be liable to be proceeded against and punished accordingly. 2 Where the affairs of a body corporate are managed by its members, paragraph (1) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate. 3 Where a Scottish partnership is guilty of an offence under these Regulations in Scotland and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, he as well as the partnership shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Offences outside the United Kingdom 17 For the purpose of determining in pursuance of regulation 5(2) whether an offence relating to the preparation and maintenance of accounts or the transfer of state aid between the management of railway infrastructure and the provision of transport services has been committed by any person, it is immaterial that the relevant contravention or failure to comply occurred outside the United Kingdom if when it occurred the person— a was a United Kingdom national, or b was a body incorporated under the law of any part of the United Kingdom, or c was a person (other than a United Kingdom national or such a body) maintaining a place of business in the United Kingdom. Signed by authority of the Secretary of State for Transport Roger Freeman Minister of State, Department of Transport 7th December 1992