reg 32 Appeals to the regulatory body
(1) Subject to paragraph (3), an applicant has a right to appeal to the Office of Rail and Road if it believes that it has been unfairly treated, discriminated against or is in any other way aggrieved, and in particular against decisions adopted by the infrastructure manager, an allocation body, a charging body, a service provider or, as the case may be, a railway undertaking, concerning any of the matters described in paragraph (2). (2) Those matters are— (a) the network statement produced in accordance with regulation 13, in its provisional and final versions; (b) the information which, by virtue of regulation 13(4), must be included in that network statement; (c) the allocation process and its result as prescribed in Part 5 and Schedule 4; (d) the charging scheme, the charging system and the Channel Tunnel charging framework; (e) the level or structure of railway infrastructure charges, the principles of which are prescribed in Part 4 and Schedule 3, which it is, or may be, required to pay; (f) the arrangements for access provided under Part 2 and Schedule 2; and (g) access to and charging for services provided under Part 2 and Schedule 2. (3) Where the matter of an appeal under paragraph (1) is one in relation to which directions may be sought from the Office of Rail and Road under section 17 or 22A of the Act , the applicant must lodge the appeal by way of an application under the relevant section. (4) Where the matter of an appeal under paragraph (1) is one to which paragraph (3) does not apply because— (a) the railway facility to which the appeal relates is, by virtue of section 20 of the Act , an exempt facility; (b) the appeal relates to a rail link facility; or (c) the subject matter of the appeal is not capable of being addressed by directions which may be sought under section 17 or 22A of the Act, the applicant must lodge the appeal by way of an application under this regulation, in such form and manner as the Office of Rail and Road may from time to time specify. (5) Where the matter of an appeal under paragraph (1) is one to which paragraph (3) does not apply, the Office of Rail and Road must— (a) as appropriate, ask for relevant information and initiate a consultation with the relevant parties within one month of the date of receipt of the appeal; and (b) within a predetermined and reasonable time, and, in any case, within six weeks of the date of receipt of all relevant information (including information provided pursuant to section 80 of the Act , as modified by regulation 36)— (i) make a decision; (ii) inform the relevant parties of its decision and the reasons for that decision; (iii) where appropriate, issue a direction to the infrastructure manager, allocation body, charging body, service provider or, as the case may be, railway undertaking, to remedy the situation from which the appeal arose; and (iv) publish the decision. (6) Where a decision or direction under paragraph (5) would affect a rail link facility or, as the case may be, the operation of the development agreement, the Office of Rail and Road must consult and, subject to paragraph (7), take into account any representations made by the Secretary of State before making or issuing such a decision or direction. (7) Where paragraph (6) applies and, following consultation, the Secretary of State submits representations, the Office of Rail and Road must, before making or issuing a decision or direction, consult such interested parties as it considers appropriate on the representations submitted by the Secretary of State. (8) When an appeal under paragraph (1) contests a decision under regulation 6(4) to refuse a request for access to, and the supply of, services described in paragraph 2 of Schedule 2, a decision under paragraph (5) must include a determination as to whether, in respect of the access and provision of services to which the appeal relates, a viable alternative exists. (9) When an appeal under paragraph (1) contests a decision to refuse or restrict the provision of services in circumstances where there are conflicting requests as described in regulation 6(7), a determination under paragraph (5) must include a determination, as appropriate and in respect of the circumstances to which the appeal relates, of— (a) whether a viable alternative as described in regulation 6(4) exists; (b) whether it is possible to accommodate the conflicting requests on the basis of demonstrated need; and (c) whether, and if so what, part of the service capacity must be granted to the applicant. (10) Where a decision under paragraph (5) concerns a refusal by an infrastructure manager or allocation body to allocate infrastructure capacity, or concerns an appeal against the terms of an offer of infrastructure capacity, the Office of Rail and Road must, in such a decision, either— (a) confirm that no modification of the infrastructure manager or allocation body's decision is required; or (b) require modification of that decision and issue directions to that effect. (11) Without prejudice to the right of any person to make an application to the court under Part 54 of the Civil Procedure Rules 1998— (a) a decision by the Office of Rail and Road on an appeal brought under this regulation is binding on all parties affected by that decision; (b) it is the duty of any person to whom a direction is given under this regulation to comply with and give effect to that direction.