Transport Act 2000 (c. 38)

(The document as of February, 2008)

-- Back --

Page 14

Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 | P.10 | P.11 | P.12 | P.13 | P.14 | P.15 | P.16 | P.17 | P.18 | P.19 | P.20 | P.21 | P.22 | P.23 | P.24 | P.25 | P.26 | P.27 | P.28 | P.29 | P.30 | P.31 | P.32 | P.33 | P.34

(c) the reference in subsection (2)(b) above to anything which has been or is being done or omitted to be done included a reference to anything which is likely to be done or omitted to be done.

57C Procedural requirements for penalties

(1) Before it imposes a penalty on a relevant operator, the appropriate authority shall give notice--

(a) stating that it proposes to impose a penalty on the relevant operator and the amount of the penalty proposed,

(b) setting out the relevant condition or requirement or order in question,

(c) specifying the acts or omissions which, in its opinion, constitute contraventions of that condition or requirement or order and the other facts which, in its opinion, justify the imposition of a penalty and the amount of the penalty proposed,

(d) specifying the manner in which, and place at which, it is proposed to require the penalty to be paid, and

(e) specifying the period (not being less than 21 days from the date of publication of the notice) within which representations or objections with respect to the proposed penalty may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(2) A notice under subsection (1) above shall be given--

(a) by publishing the notice in such manner as the appropriate authority considers appropriate; and

(b) by serving a copy of the notice on the relevant operator.

(3) Where the Regulator serves a copy of a notice under subsection (1) above on a licence holder, he shall also serve a copy on the Authority; and where the Authority so serves a copy of such a notice, it shall also serve a copy on the Regulator.

(4) The appropriate authority shall not modify a proposal to impose a penalty except--

(a) with the consent of the relevant operator;

(b) where the modifications consist of a reduction of the amount of the penalty or a deferral of the date by which it is to be paid; or

(5) The requirements mentioned in subsection (4)(c) above are that the appropriate authority shall--

(a) give to the relevant operator such notice as appears to it requisite of its modified proposal;

(b) unless the proposed modifications are trivial, in that notice specify a period (not being less than seven days from the date of service of the notice) within which representations or objections with respect to the proposed modifications may be made; and

(6) As soon as practicable after imposing a penalty, the appropriate authority shall give notice--

(a) stating that it has imposed a penalty on the relevant operator and its amount;

(b) setting out the relevant condition or requirement or order in question;

(d) specifying the manner in which, and place at which, the penalty is to be paid; and

(e) specifying the date (not being less than fourteen days from the date of publication of the notice) by which the penalty is to be paid.

(7) A notice under subsection (6) above shall be given--

(a) by publishing the notice in such manner as the appropriate authority considers appropriate; and

(b) by serving a copy of the notice on the relevant operator.

(8) The relevant operator may, within 21 days of the date of service on him of the notice under subsection (6) above, make an application to the appropriate authority for it to specify different dates by which different portions of the penalty are to be paid.

57D Time limits

(1) No penalty may be imposed in respect of a contravention by a relevant operator--

(a) by virtue of paragraph (a) of subsection (1) of section 57A above in a case where no final or provisional order has been made in relation to the contravention, or

(b) by virtue of paragraph (b) of that subsection,

unless a copy of the notice relating to the penalty under section 57C(1) above is served on the relevant operator within two years of the time of the contravention.

(2) No penalty may be imposed in respect of a contravention by a relevant operator by virtue of section 57A(1)(a) above in a case where a final or provisional order has been made in relation to the contravention unless a copy of the notice relating to the penalty under section 57C(1) above is served on the relevant operator--

(a) within three months of the confirmation of the provisional order or the making of the final order; or

(b) where the provisional order is not confirmed, within six months of the making of the provisional order.

57E Interest and payment of instalments

(1) If the whole or any part of a penalty is not paid by the date by which it is to be paid, the unpaid balance from time to time shall carry interest at the rate for the time being specified in section 17 of the [1838 c. 110.] Judgments Act 1838.

(2) If an application is made under subsection (8) of section 57C above in relation to a penalty, the penalty need not be paid until the application has been determined.

(3) If the appropriate authority grants an application under that subsection in relation to a penalty but any portion of the penalty is not paid by the date specified in relation to it by the appropriate authority under that subsection, so much of the penalty as has not already been paid is to be paid immediately.

57F Validity and effect of penalties

(1) If the relevant operator to whom a penalty order relates is aggrieved by a penalty and desires to question its validity on the ground--

(a) that it was not within the powers of section 57A above,

(b) that any of the requirements of section 57C above have not been complied with in relation to it and his interests have been substantially prejudiced by the non-compliance, or

he may make an application to the court under this section.

(2) An application under this section by a person shall be made--

(a) where it is on the ground mentioned in subsection (1)(c) above, within 42 days from the date on which he is notified of the decision not to grant the application under section 57C(8) above, and

(b) in any other case, within 42 days from the date of service on him of the notice under section 57C(6) above.

(3) If an application is made under this section in relation to a penalty, the penalty need not be paid until the application has been determined.

(4) On an application under this section on the ground mentioned in subsection (1)(a) or (b) above the court, if satisfied that the ground is established, may quash the penalty or (instead of quashing it) make provision under either or both of paragraphs (a) and (b) of subsection (5) below.

(5) The provision referred to in subsection (4) above is--

(a) provision substituting a penalty of such lesser amount as the court considers appropriate in all the circumstances of the case; and

(b) provision substituting as the date by which the penalty, or any portion of the penalty, is to be paid a date later than that specified in the notice under section 57C(6) above.

(6) On an application under this section on the ground mentioned in subsection (1)(c) above the court, if satisfied that the ground is established, may specify different dates by which different portions of the penalty are to be paid.

(7) Where the court substitutes a penalty of a lesser amount it may require the payment of interest on the substituted penalty at such rate, and from such date, as it determines; and where it specifies as the date by which the penalty, or a portion of the penalty, is to be paid a date before the determination of the application it may require the payment of interest on the penalty, or portion, from that date at such rate as it determines.

(8) Except as provided by this section, the validity of a penalty shall not be questioned by any legal proceedings whatever. "

(2) In section 55 of that Act (orders for securing compliance), for subsection (8) substitute--

" (7A) The provision that may be made in a final or provisional order includes, in particular, provision requiring the relevant operator to pay to the Authority in the event of any specified contravention of the order such reasonable sum in respect of the contravention as is specified in, or determined in accordance with, the order in such manner, at such place and by such date as is so specified or determined.

(7B) The amount of the sum may not exceed 10 per cent. of the turnover of the relevant operator determined in accordance with an order made by the Secretary of State; and an order under this subsection shall not be made unless a draft of the statutory instrument containing it has been laid before and approved by a resolution of each House of Parliament.

(7C) If the whole or any part of the sum is not paid by the date by which it is to be paid, the unpaid balance from time to time shall carry interest at the rate for the time being specified in section 17 of the [1838 c. 110.] Judgments Act 1838. "

226 Orders for securing compliance

(1) In section 55 of the [1993 c. 43.] Railways Act 1993 (orders for securing compliance)--

(a) in subsection (5) (cases where order shall not be made or confirmed) omit paragraphs (b) and (c),

(b) after subsection (5A) insert--

" (5B) If the appropriate authority is satisfied--

(a) that the relevant operator has agreed to take, and is taking, all such steps as it appears to the appropriate authority for the time being to be appropriate for the relevant operator to take for the purpose of securing or facilitating compliance with the condition or requirement in question, or

(b) that the contravention or apprehended contravention will not adversely affect the interests of users of railway services or lead to any increase in public expenditure,

it shall only make a final order, or make or confirm a provisional order, if it considers it appropriate to do so. " , and

(c) in subsection (6) (requirement to serve and publish notice that subsection (5) or (5A) applies), for the words from "is satisfied" to "so satisfied" substitute " does not make a final order, or make or confirm a provisional order, because of any provision contained in any of subsections (5) to (5B) above, it shall--

(a) serve notice of that fact " .

(2) In section 56 of that Act (procedural requirements about orders)--

(a) in subsection (1)(c) (requirement of at least 28 days' notice for making representations or objections to proposed final order or proposed confirmation of provisional order), for "28" substitute "21",

(b) in subsection (4)(b) (requirement of at least 28 days' notice for making representations or objections to proposed modifications), for "in that notice specify the period (not being less than 28" substitute "unless the proposed modifications are trivial, in that notice specify a period (not being less than seven", and

(c) in subsection (6)(b) (requirement of at least 28 days' notice for making representations or objections to proposal to revoke order), for "28" substitute "21".

Consultative committees

227 Renaming of committees

(1) The Central Rail Users' Consultative Committee is renamed the Rail Passengers' Council and the Rail Users' Consultative Committees are renamed Rail Passengers' Committees.

(2) Schedule 22 makes amendments in consequence of subsection (1).

(3) References in private Acts, instruments made under Acts, other documents and legal proceedings to the Central Rail Users' Consultative Committee shall have effect as references to the Rail Passengers' Council; and such references to a Rail Users' Consultative Committee shall have effect as references to a Rail Passengers' Committee.

228 Extension of functions

(1) Sections 76 and 77 of the [1993 c. 43.] Railways Act 1993 (duties of Central Committee and consultative committees) are amended as follows.

(2) In subsection (1) of each of those sections, for paragraph (a) (duty to investigate any matter which relates to the provision of railway passenger services by the Board or a subsidiary, under a franchise agreement or on behalf of the Franchising Director) substitute--

" (a) to the provision of railway passenger services, or " .

(3) In--

(a) subsection (5)(b) of section 76, and

(b) subsection (4)(b) of section 77,

(matters to be referred), after "that" insert "a franchisee is contravening, or is likely to contravene, any term of the franchise agreement or that".

(4) After subsection (7) of section 76 insert--

" (7A) It shall also be the duty of the Rail Passengers' Council, so far as it appears expedient from time to time to do so--

(a) to keep under review matters affecting the interests of the public in relation to railway passenger services and station services;

(b) to make representations to, and consult, such persons as they think appropriate about those matters; and

(7B) The Secretary of State may, after consultation with the Rail Passengers' Council, make an order excluding services from the duties imposed by this section; and an order under this subsection--

(a) may exclude services of a particular class or description, particular services or services provided by a particular person;

(b) may provide that services are excluded subject to compliance with specified conditions; and

(7C) The Secretary of State may, after consultation with the Rail Passengers' Council, make an order providing that the duties imposed by this section apply to services of a particular class or description, particular services or services provided by a particular person--

(a) only to such extent as is specified by the order; or

(b) with such modifications as are so specified. "

(5) After subsection (9) of section 77 insert--

" (9A) It shall also be the duty of each Rail Passengers' Committee, so far as it appears expedient from time to time to do so--

(a) to keep under review matters affecting the interests of the public in relation to railway passenger services and station services; and

(b) to make representations to, and consult, such persons as they think appropriate about those matters; and

(9B) The Secretary of State may, after consultation with the Rail Passengers' Council, make an order excluding services from the duties imposed by this section; and an order under this subsection--

(a) may exclude services of a particular class or description, particular services or services provided by a particular person;

(b) may provide that services are excluded subject to compliance with specified conditions; and

(9C) The Secretary of State may, after consultation with the Rail Passengers' Council, make an order providing that the duties imposed by this section apply to services of a particular class or description, particular services or services provided by a particular person--

(a) only to such extent as is specified by the order; or

(b) with such modifications as are so specified. "

229 Financial and procedural changes

Schedule 23 makes amendments of the provisions about the finances and procedures of consultative committees.

Access agreements

230 Regulator's general approvals of access agreements etc

(1) In subsection (1) of section 18 of the [1993 c. 43.] Railways Act 1993 (access contracts requiring approval of Regulator), after paragraph (b) insert " or

and for the words from "which is" to the end substitute "shall be void unless one of the conditions in paragraphs (a) to (c) above is satisfied."

(2) After subsection (7) of that section insert--

" (7A) Where the Regulator gives or revokes a general approval under subsection (1)(c) above, he 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. "

(3) In subsection (3) of section 19 of that Act (installation access contracts requiring approval of Regulator), after paragraph (b) insert " or

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

and for the words from "which is" to the end substitute "shall be void unless one of the conditions in paragraphs (a) to (c) above is satisfied."

(4) After subsection (5) of that section insert--

" (5A) Where the Regulator gives or revokes a general approval under subsection (3)(c) above, he shall publish the approval or revocation in such manner as he 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. "

(5) In section 72(2)(b)(v) of that Act (provisions of general approvals under section 22(3) to be entered in register kept by Regulator), after "section" insert "18(1)(c), 19(3)(c) or".

(6) In section 83(1) of that Act (interpretation), in the definition of "access agreement"--

(a) in paragraph (a), for "entered into pursuant to directions under section 17 or 18" substitute "which satisfies one of the conditions in paragraphs (a) to (c) of section 18(1)", and

(b) in paragraph (b), for "entered into pursuant to directions under section 19" substitute "which satisfies one of the conditions in paragraphs (a) to (c) of section 19(3)".

231 Review of access charges by Regulator

(1) In the [1993 c. 43.] Railways Act 1993, after section 19 insert--

" 19A Review of access charges by Regulator

Schedule 4A to this Act (which contains provision about the review of access charges by the Regulator) shall have effect. "

(2) After Schedule 4 to that Act insert, as Schedule 4A, the Schedule set out in Schedule 24 to this Act.

232 Amendment of access agreements

(1) In subsection (1) of section 22 of the [1993 c. 43.] Railways Act 1993 (amendment of access agreement void unless approved by Regulator), insert at the end "or is made pursuant to directions under section 22A or 22C below or Schedule 4A to this Act."

(2) After that section insert--

" 22A Directions to require amendment permitting more extensive use

(1) The Regulator 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 the Regulator 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 or an international railway access contract.

(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 the Regulator 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) "international railway access contract" and "lease" have the same meaning as in section 17 above; and

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

22B Applications for directions under section 22A: procedure

(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

(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.

22C Amendment: supplementary

(1) The Regulator may give directions requiring the parties to an access agreement to make to the access agreement amendments which are, in his opinion, necessary to give effect to the conditions of a licence or otherwise required in consequence of the conditions of a licence.

(2) The Regulator 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 the Regulator,

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. "

233 Prospective facility owners, proposed facilities etc

(1) In section 17(6) of the [1993 c. 43.] Railways Act 1993 (directions requiring facility owners to enter into contracts for use of their railway facilities), in the definition of "facility owner", after paragraph (b) insert "but also includes a person before he becomes a facility owner;".

(2) In section 19 of that Act (contracts for use of installations comprised in a network)--

(a) in subsection (9), in the definition of "installation owner", after paragraph (b) insert "but also includes a person before he becomes an installation owner;", and

(b) in subsection (11), insert at the end "and to one which is proposed to be constructed or is in the course of construction."

(3) In section 83 of that Act (interpretation of Part I), after subsection (1) insert--

" (1A) In sections 17 to 22C above (and Schedule 4 to this Act) references to a railway facility (including references to any track, station or light maintenance depot) or a network include references to a railway facility (or any track, station or light maintenance depot) or a network which is proposed to be constructed or is in the course of construction. "

Closures

234 Transfer of Regulator's functions to Secretary of State

(1) In sections 37(6), 38(5), 39(7), 40(5), 41(6) and 42(4) of the [1993 c. 43.] Railways Act 1993 (lodging of objections to proposed closures with Regulator), for "Regulator" substitute "Secretary of State".

(2) In sections 37(9), 38(7), 39(10), 40(7), 41(9) and 42(6) of that Act, in the definition of "the final decision on the closure question", for paragraphs (a) and (b) substitute "the Secretary of State's decision under section 43(9) below with respect to the proposed closure;".

(3) In section 43 of that Act (notification to, and functions of, Regulator)--

(a) for "Regulator" (in each place except subsection (11)) substitute "Secretary of State",

(b) omit subsection (11) (time limit for making of decisions by Regulator), and

(4) Omit section 44 of that Act (reference of Regulator's decisions to Secretary of State).

(5) In section 46 of that Act (variation of closure conditions)--

(a) in subsection (1), for "Regulator" substitute "Secretary of State" and omit the words from ", other than" to the end,

(b) in subsection (2), for "Regulator" substitute "Secretary of State" and for "Secretary of State" substitute "Regulator", and

(6) In section 48 of that Act (experimental services)--

(a) in subsection (1), for ", 43 and 44" substitute "and 43", and

(b) in subsection (7), for "Regulator" substitute "Secretary of State".

(7) In section 68 of that Act (investigatory functions of Regulator), omit subsection (1)(b) (duty to investigate contravention of condition of closure consent).

235 Publication of proposed closures at stations

(1) In section 43 of the [1993 c. 43.] Railways Act 1993 (notification of proposed closures), after subsection (1) insert--

" (1A) The Authority shall also--

(a) send a copy of the notice to every person who is the operator of a station within the area affected; and