Access exemptions
Section 20 of the Railways Act 1993 (the Act) provides for a facility owner to apply to the Regulator or the Secretary of State for an exemption from the access provisions contained in sections 17, 18 and 22A. This, if granted, is known as a facility exemption. The Regulator may decide to issue a facility exemption but only after consultation with the Secretary of State. He must also have notified any person he considered likely to be affected by the facility exemption and taken into account any representations or objections they made within 28 days of the issue of that notice. The Regulator may decide to include certain conditions relating to the application of the exemption. In reaching his decision, he will take into account his duties under section 4 of the Act and each case will be considered on its own merits.
Exemptions can be granted to a particular class or description of persons as well as to individual applicants. For example, the Railways (Class and Miscellaneous Exemptions) Order 1994 (the “CMEO”) exempts, among other things, certain named railway assets (and certain categories of railway assets) from the access provisions of the Act. This includes, amongst others, railway assets operated by someone other than the British Railways Board (or a subsidiary) or London Regional Transport (or a subsidiary) on 1 April 1994. Many other railway assets are exempted by the CMEO and prospective applicants are advised to check the CMEO before submitting an application for an individual exemption. Exemptions generally fall into three categories: stations, depots and network exemptions. Network exemptions apply to a specific defined network. Station and light maintenance depot exemptions generally relate to a named station or light maintenance depot.
In relation to a facility owner’s network, the Regulator will usually expect access to be available to all train operators providing passenger or freight, or other, services. Sections 17 and 22A of the Act provide for a person denied access to a facility owner’s network to make application to the Regulator to direct the facility owner to grant access. However, he understands that there may be occasions when a facility owner may wish to apply to him for a facility access exemption. In such cases, the Regulator will expect the application to be supported by a written explanation specifying (i) the reason why the application for a facility access exemption should be granted; and (ii) why the protections afforded to the facility owner by section 4 of the Act, are not sufficient. Applicants should also include information to show the extent to which the relevant facility is connected to Network Rail’s network and how much, if any, traffic is expected to pass between the two.
There are no statutory timescales within which the Regulator must make his decision in relation to an application for an access exemption. In practice, such decisions often take several months to reach. A person intending to seek a facility access exemption from the Regulator is therefore advised to contact ORR as soon as possible.
It should be noted that a facility exemption does not also provide an exemption from the licensing regime. Applicants seeking licence exemptions should also view the licensing sections of the ORR website.
Further advice on facility exemptions can be obtained from the relevant contacts listed in the related links section of this page.
All exemptions granted by the Regulator under section 20 of the Act are entered in the Regulator's public register. In addition, the Regulator's reasons for his decision to grant, decline or revoke a facility exemption and the relevant documents will be made available below.
