Examination of Witnesses (Questions 9800
9800. It is not on the website unfortunately.
(Mr Smith) At that meeting with Mr Kogan and Mr Robertson,
we raised at length the issue of the importance of infrastructure
commitments, and Mr Kogan, as I recall, said that the ORR was
not able to require commitments to the infrastructure.
9801. Did he vouchsafe you a reason for that?
(Mr Smith) No, he did not. He just said that it was all very
difficult. We have extensive and good relationships with the ORR
and we tend not to push at a very closed and bolted door, so,
when Mr Kogan said, "We're not able to commit to the infrastructure",
we just said, "Okay, we will deal with all the other points
that we have raised with you", which we then put into this
letter that you have up on the screen now.
9802. Clearly he was not referring to a legal
ability because he has wide powers of direction.
(Mr Smith) I am aware of that, so I am not quite sure what
it was he had difficulty with.
9803. The only reason that we have and that
the Committee have are the reasons set out in the provisional
and the final decision letters, and indeed the discussion on 1
February, where they make it clear that the issue of uncertainty,
because modelling was at an early stage, meant that it was better
to have an output-driven approach. That is the reasoning we get,
is it not?
(Mr Smith) We do know that the ORR's resources were very
thinly stretched at this particular time because of issues to
do with the West Coast Main Line.
9804. Could you answer my question, please?
(Mr Smith) Sorry, I do apologise. Could you just repeat it
again for me?
9805. Yes, what I said was that what we do know
from the reasoning of the ORR in the decisions is that it, the
Regulator, considered it inappropriate to make those requirements
because the modelling at this stage is at an early stage and flexibility
was required, and those are the items of reasoning which go into
the ORR's decision to go for outputs, because it provides greater
(Mr Smith) They are the statements the ORR put in its decision
9806. So you have no other reasons that you
would vouchsafe which contradict the reasons appearing in the
(Mr Smith) No, no other reasons.
9807. So what the Committee does know is that
there was an additional meeting, therefore, at which you made
the point yet again about the infrastructure and, therefore, there
can be no doubt whatsoever that the ORR was fully apprised of
your views of infrastructure.
(Mr Smith) The ORR was fully apprised. We left them in no
doubt about our views.
9808. MR ELVIN: The other point you make
in this letter, if we can please go to page 117, is in relation
to change control.
9809. CHAIRMAN: Mr Elvin, I am not sure
that any of us really understands what change control is.
9810. MR ELVIN: Can I try this and Mr
Smith will tell me if I am wrong. My Lords, change control is
a series of protocols which allows you to identify when you should
regard there being a conflict between the Crossrail paths that
are being modelled and the other paths which are regarded as relevant
for those purposes, that is to say, existing passenger paths,
existing freight paths and the modelled paths for future growth
in this case. What the change control rules do, as I understand
it, Mr Smith, is that, where such a conflict as defined is identified,
they set out what should happen in the event of that conflict.
(Mr Smith) I believe that is the case. I am not an expert
on this either, but my colleague, Mr Oatway, who appears shortly
is, but I agree with you.
9811. MR ELVIN: So, my Lords, it is a
means of resolving what happens.
9812. CHAIRMAN: It is a mechanism?
9813. MR ELVIN: It is a mechanism for
resolving conflicts between Crossrail paths in the modelling and
other paths that should be protected.
9814. CHAIRMAN: But it would happen in
general terms across the entire rail network?
9815. MR ELVIN: Well, I will show you
the relevant terms so far as your Lordships need them.
9816. CHAIRMAN: But it is a general exercise?
9817. MR ELVIN: It is a general exercise
so far as the Crossrail modelling is concerned. You have the change
control mechanism and the decision is specific to the Crossrail
9818. CHAIRMAN: But, as a mechanism,
it is general in the railway industry?
9819. MR ELVIN: It is, yes. As I understand
it, and I am not going to take their Lordships right to the beginning
of section 15 because it is rather long, but you have expressed
concern with the lack of focus in the change control mechanism
and you thought it was too beneficial to conflicts from Crossrail,
so you had urged the Regulator to come up with a much tougher
means of resolving those conflicts?
(Mr Smith) That is correct.
4 Crossrail Ref: P67, Correspondence from EWS Ltd
to the Office of Rail Regulation, Change Control, 17 March 2008