Managing new enforcement powers for councils under the Traffic Management Act 2004

The adoption of a CAZ in major cities forms part of a major Government initiative to reduce carbon emissions caused by traffic congestion and exhaust fumes. Whether charges apply to the particular vehicle you happen to be driving depends on the type of CAZ introduced in that area.

Charging in a CAZ falls under four Classes – Class A, B, C and D.

• Class A – covers buses, coaches and taxi.
• Class B – effects buses, coaches, taxis, private hire vehicles and heavy goods vehicles.
• Class C – covers buses, coaches, taxis, private hire vehicles, heavy goods vehicles, vans and minibuses.
• Class D – is all encompassing and includes buses, coaches, taxis, private hire vehicles, heavy goods vehicles, vans, minibuses and domestic cars, plus the local authority has the option to include motorcycles.

Urgent Action Required

There is no doubt that urgent action is needed to clean up the air we breathe. The Royal College of Physicians estimates that 40,000 deaths can be attributed to exposure to outdoor pollution. It has been linked to cancer, asthma, strokes, heart disease, diabetes, obesity and dementia. Government ministers were ordered by the Supreme Court to introduce measures designed to tackle the amount of nitrogen dioxide (NO2) in the air. It is hoped the use of a CAZ in a city will form a key part of that response. However, it is questionable whether a CAZ is really going to be that effective in reducing carbon emissions and achieving better air quality?

Whilst some local authorities (e.g. Bath, Birmingham, Greater Manchester, Leeds) have embraced the CAZ concept, others have chosen alternative approaches.  Many local authorities fear that a charging CAZ may deter visitors and tourists, at a time when Councils are seeking to entice people back into city centres to help rebuild local economies. The risk of local opposition to a charging CAZ is high, with people directly affected likely to resent having to pay a new tax. The fear is such opposition could translate to the ballot box, as local aggrieved motorists are also likely to become local aggrieved voters.

This perhaps demonstrates the horns of a dilemma faced by councils as they struggle to address different but connected priorities. The recovery and regeneration of the local economy on the one hand and the improvement of air quality through reduced traffic on the other.

Moving Traffic Offences

To this heady mix is now added another set of major changes, as the Government ponders the possibility of passing on responsibility for the enforcement of (certain) moving traffic offences in England to the relevant local authority for the area. Local authorities across England would gain the power to issue penalty charge notices for decriminalised offences such as straying into a restricted route, stopping in a yellow box junction or performing a prohibited turn.

Several recent articles warn of dire consequences for motorists if this should come to pass and point to the fact that such schemes have already been introduced in London and Cardiff which have netted a total of over £58m in fines in only one year. The fear is, should these powers be extended across England to 300 or so local authorities, those local authorities could get carried away with their new-found enforcement powers. There may be a perception that the local authorities are seeking to exploit their powers to ‘fleece’, any poor, unsuspecting driver who happen to be blundering past.

Baroness Vere of Norbiton the Transport Minister recently suggested new powers could be introduced as early as December 2021 and (like the CAZ) they are designed to help councils prioritise cycling, reduce traffic congestion and improve air quality. In fact, primary legislation already exists to make this happen – contained in the Traffic Management Act 2004 ‘(the TMA 2004’). In Part 6, S.73 specifies that the offences listed at Schedule 7 can be made subject to civil enforcement. However, it has yet to happen anywhere in England. In London, decriminalisation came about as a result of an Act of Parliament which Sharpe Pritchard promoted for the London Borough Councils and TfL (the London Local Authorities and Transport for London Act 2003).

Secondary legislation would be needed to implement the powers on a wider basis, and the government would need to start consulting on it soon in order to meet a December 2021 implementation date.

Managing the Changes

With new powers come new responsibilities and the local authorities considering the adoption and use of these new powers should address the following questions.

• Will they be able to develop appropriate transport strategies to take account of the impact of these powers that will satisfy central government they are ready to take on the new responsibilities?
• Do they have, or can they procure in time the sophisticated equipment, cameras, ITC to make enforcement work efficiently?
• Can they engage and train up staff in good time to undertake these new functions? Will they have to fund this investment before taking on the new powers and receiving any income from penalty charges and fines?
• Will they be able to keep all of the proceeds from enforcement in terms of fines and penalties, and if so, will they be required to use them for limited purposes (in London, penalty charge income must be used for transport-related expenditure before in the first instance)?
• What discretion (if any) will there be to decide not to impose penalties in particular circumstances and how will such discretions be applied across all LA regions?
• What will the view of the police be?

As is to be expected, the LGA are lobbying hard for the new powers to be made available to their members and have previously conducted research showing their members would consider using the new powers. Several councils are already gearing up to take these new responsibilities on and so big changes to traffic management are ahead.

Sharpe Pritchard can prepare bespoke training and advice to aid local authorities in managing these powers. A free introductory webinar on the topic is likely to be scheduled in the Autumn ahead of the December 2021 changes.

Sharpe Pritchard is well placed to advise on all manner of issues related to the new traffic management powers and adoption of Clean Air Zones.  If you have any queries in relation to this article you can email Rob.

Rob Hann was head of legal at 4ps/Local Partnerships between 1996 and 2016 and (amongst other things) he helped develop and deliver the roll out of the PFI across local government including templates, model form sector specific contracts and the local government input to SoPC. He is now Head of Local Government at Sharpe Pritchard. He can be contacted at rhann@sharpepritchard.co.uk.

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This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email enquiries@sharpepritchard.co.uk