10Priority of passenger services

10 Priority of passenger services (1) If— S. 10(1)(a) amended by Nos 61/2011 s. 25(Sch. 1 item 13.5(a)), 3/2017 s. 50(Sch. 1 item 10.5). (a) an agreement relating to the provision or operation of passenger services between the Head, Transport for Victoria and a train operator provides for the Head, Transport for Victoria to require or approve a change in the timetable for a passenger service provided by the train operator; and S. 10(1)(b) amended by Nos 61/2011 s. 25(Sch. 1 item 13.5(b)), 3/2017 s. 50(Sch. 1 item 10.5). (b) in accordance with that agreement the Head, Transport for Victoria requires or approves a timetable change; and S. 10(1)(c) amended by Nos 45/1999 s. 19(1)(a), 25/2005 s. 9(1)(a)(i)(ii). (c) in order to provide the passenger service to which the timetable change relates, the train operator requires use of rail transport services or declared rail transport services; and S. 10(1)(d) amended by Nos 45/1999 s. 19(1)(b), 62/2001 s. 96, substituted by No. 25/2005 s. 9(1)(b). (d) the train operator is— (i) a party to an agreement relating to the provision of those rail transport services or declared rail transport services; or S. 10(1)(d)(ia) inserted by No. 25/2005 s. 9(7). (ia) an access provider bound by a binding access arrangement relating to the provision of those rail transport services or declared rail transport services; or (ii) an access provider bound by a dispute resolution decision relating to the provision of those rail transport services or declared rail transport services— then— S. 10(1)(e) amended by Nos 45/1999 s. 19(1)(c), 25/2005 s. 9(1)(c), 6/2010 s. 199(3) (Sch. 3 item 2.3). (e) the person that is the operator for the purposes of Part 2A of the **Rail Management Act 1996** of the rail infrastructure used to provide those rail transport services or declared rail transport services (in this section referred to as ***the rail infrastructure operator***) must provide the train operator with such services as are necessary to enable the train operator to provide the passenger service in accordance with the timetable change; or (f) if the train operator and the rail infrastructure operator are the same person, the train operator may use those services to the extent necessary to enable the train operator to provide the passenger service in accordance with the timetable change. S. 10(2) amended by No. 25/2005 s. 9(2)(a)(b). (2) Subsection (1) applies even if the use by the train operator of the rail transport services and declared rail transport services may— S. 10(2)(a) amended by No. 45/1999 s. 19(2)(a). (a) interfere with an existing use by the rail infrastructure operator of the rail transport services or declared rail transport services for the provision by that operator of a rail transport service other than a passenger service or a service that is predominantly a passenger service (in this section referred to as ***a non-passenger service***); or S. 10(2)(b) amended by Nos 45/1999 s. 19(2)(b), 25/2005 s. 9(2)(c)(i)(ii). (b) interfere with an existing right of another person to use the rail transport services or declared rail transport services (as the case may be) to provide a non-passenger service. (3) Subsection (1) is subject to— S. 10(3)(a) amended by No. 45/1999 s. 19(3). (a) any existing use by the rail infrastructure operator of the rail transport services or declared rail transport services for the provision of, or predominantly for the provision of, a passenger service by that operator; or S. 10(3)(b) amended by Nos 45/1999 s. 19(3), 25/2005 s. 9(3)(a)(b). (b) any existing right of a train operator to use the rail transport services or declared rail transport services for the provision of, or predominantly for the provision of, a passenger service. S. 10(4) substituted by No. 25/2005 s. 9(4). (4) Nothing in subsection (2) or (3) affects any provision of an agreement or a dispute resolution decision referred to in subsection (1)(d) relating to a right to use rail transport services or declared rail transport services referred to in subsection (2)(b) or (3)(b) which specifies the respective rights or obligations of— S. 10(4)(a) amended by No. 25/2005 s. 9(8)(a). (a) in the case of an agreement, binding access arrangement, the parties to the agreement; or S. 10(4)(ab) inserted by No. 25/2005 s. 9(8)(b). (ab) in the case of a binding access arrangement, the access provider and any access seeker; or (b) in the case of a dispute resolution decision, the parties bound by that decision— as a result of— (c) any interference with an existing use or right arising from the operation of this section; or S. 10(4)(d) amended by Nos 61/2011 s. 25(Sch. 1 item 13.5(b)), 3/2017 s. 50(Sch. 1 item 10.5). (d) the Head, Transport for Victoria requiring or approving a timetable change in accordance with an agreement referred to in subsection (1)(a). S. 10(5) substituted by No. 25/2005 s. 9(5), amended by No. 25/2005 s. 9(9). (5) Subject to the terms of any agreement, binding access agreement, or a dispute resolution decision relating to a right referred to in subsection (2)(b), if the operation of this section interferes with that right, the rail infrastructure operator must use all reasonable endeavours to provide alternative rail transport services or declared rail transport services (as the case requires) to the person whose right to use those services is interfered with so as to minimise that interference. S. 10(6) amended by Nos 61/2011 s. 25(Sch. 1 item 13.5(b)), 3/2017 s. 50(Sch. 1 item 10.5). (6) In deciding whether to require or approve a timetable change in accordance with an agreement referred to in subsection (1)(a), the Head, Transport for Victoria must have regard to the objective of ensuring that the provision of a passenger service has priority over any non‑passenger service unless, in the particular circumstances, the interference with a non‑passenger service resulting from according that priority would in the opinion of the Head, Transport for Victoria be serious and unreasonable. S. 10(7) inserted by No. 25/2005 s. 9(6), amended by No. 6/2010 s. 199(3) (Sch. 3 item 2.4). (7) In this section ***access provider***, ***access seeker***, ***binding access arrangement***, ***dispute resolution decision***, ***rail transport service*** and ***declared rail transport service*** have the meanings given to them under section 38A of the **Rail Management Act 1996**. New s. 11 inserted by No. 98/1998 s. 24, amended by No. 61/2011 s. 23(3)(4), repealed by No. 35/2014 s. 39. New s. 12 inserted by No. 69/2007 s. 9.