Roadside Emission Testing by Local Authorities

1. You asked the Motorists' Forum to look at the options for the future extension of local authority roadside emission testing. This report sets out the arguments for our preferred option for extending the scheme and makes other recommendations. In offering this advice, may I stress we only favour the extension of the scheme in order to help improve air quality. We do not support any extension that is designed simply to raise revenue.

2. Under my Chairmanship, the Forum set up a small working Group to review the options. The Group consisted of members from the Society of Motor Manufacturers and Traders, the Retail Motor Industry Federation, the National Society for Clean Air, The Automobile Association, the RAC Foundation and RAC Motoring Services. The Local Government Association was also asked to join the Group but was unfortunately unable to send a representative to the meeting. I have, however, discussed this matter with the LGA subsequently and their comments have been incorporated into this response. Representatives from the Department also attended the meeting in an advisory capacity.

3. At the meeting, we had the benefit of a very helpful paper from the Department setting out the options for the future extension of local authority roadside emission testing. It would have been helpful if we had also had sight of the Departmental guidance on Local Authority Roadside Vehicle Emission Enforcement. (I have checked subsequently how our recommendations relate to the guidance and indicate where I think they agree or do not agree.)

4. The Group met to discuss the paper on 15 March. Early in the discussion it was agreed that roadside emission testing can be a useful tool for local authorities to address air quality standards in particular local Air Quality Zones. But there were concerns about how the pilot scheme was operating. They included :-

• Perceived inconsistencies between the results of Roadside and MOT Testing
• Doubts about how uniform was the competence of all who operate the roadside testing equipment
• An apparent variability between local authorities in using the discretion available to them when dealing with emissions failures. This can manifest itself in the issue of Penalty Charge Notices to both marginal failures and gross polluters, meaning that both are dealt with in the same way
• The sometimes excessive number of motorists who are stopped in order to identify offenders. In particular, the questionable need to test new vehicles at the roadside given that such vehicles are an order of magnitude less polluting than ones produced a decade ago
• The difficulties in operating the scheme given that only the police can stop vehicles and the arguments against allowing these powers to be given to others
• The difficulties of covering costs, particularly where there are only small numbers of polluters. This could lead to local authorities being more concerned with the issue of penalty notices as opposed to rectification, advice etc.

5. With these concerns in mind, we looked in detail at the Department's paper. Our deliberations were also conducted in the light of advice from DETR officials that the aim of the scheme is to catch gross polluters in gross polluted areas.

6. We looked firstly at the areas in which testing would be applied. It was explained to the Group that local authorities are required to review and assess air quality in their areas and to designate Air Quality Management Areas (AQMAs) where there are particular problems. (We were advised that about 50% of local authorities could potentially have to designate AQMAs although the size of these areas was likely to vary considerably from borough to borough.)

7. Emissions from road transport are often a major contributory factor in areas where overall pollution is worst. However, high levels of pollution may not always be directly attributable to transport. Industry, power stations and domestic households, for example, all contribute to emission levels. Nevertheless, roadside emission testing is a useful tool for authorities to use in helping address the problems caused by poorly maintained vehicles. We note, however, that the advent of On-Board Diagnostics in petrol engined cars from January 2000 will alter in future the nature of roadside emission testing for such vehicles.

8. The Group's main concern was whether local authorities would be able to identify areas of gross pollution. We were advised that technical guidance had been issued by the Department to enable them to do this and that whilst the designation of AQMAs did need to settle down, the process was basically sound. In addition, we were advised the areas would be reviewed in 2003 and that guidelines had been built into the process to ensure the policy was not misused by local authorities. Given such assurances, we are content with the area designations.

9. Given the concerns that had been expressed earlier about marginal failures and gross polluters being dealt with in the same way, we then explored whether gross polluters could be defined with the aim of only prosecuting those falling into this category.

10. It was explained to the Group that the concept of a gross polluter had never been defined. Firstly, it would be very difficult to say at what point gross negligence arose; secondly, and more importantly, as far as the law was concerned, any person driving a vehicle that did not meet the standards laid down in the Road Vehicles (Construction and Use) Regulations 1986 committed an offence; and thirdly, there were significantly different levels of regulated emissions between pre-Euro 1 and present day vehicles.

11. DETR officials stressed that in their opinion the way to tackle this problem was to ensure local authorities exercised discretion so that drivers of vehicles that are marginal failures do not receive a fine. It was pointed out that a 10% leeway over the statutory level is applied currently because of equipment, climatic conditions etc. (We were advised that fixed penalty notices had been issued to less than half of the number of offenders in the pilot scheme).

12. We accept that it is not possible within current confines to define gross polluters and for enforcement action to be targeted solely on this group. However, the Group remains concerned about the fact that marginal failures and gross polluters can potentially be dealt with in the same way. I have examined the guidelines and find it helpful that in the general course of events a 10% leeway (specifically applied to the standards to which the vehicle has been built) will be taken into account before enforcement action is taken. We endorse this approach. We recommend clear reasons ought to be given for proceeding with enforcement action if vehicles fall within this 10% leeway. We also recommend that consideration should be given to exploring whether the upper limit of this 10% leeway could be a potential definition of gross polluter.

13. Members also expressed concern about the use of the testing equipment. It was claimed that complaints had been received about tests being carried out improperly eg vehicles not at the correct operating temperature. We noted the Department's assertion that this was not the case. We concluded that should the motoring organisations and others represented on the Group have evidence of improper testing, this should be submitted to the Department for investigation. We should clearly expect a full examination to be carried out of any such complaints and the appropriate remedial action to be taken where necessary.

14. Members also called the competence of those using the machinery into question. It was claimed that staff who had been initially trained in their operation were sometimes moved elsewhere and untrained staff undertook tests. We were advised that the guidance covering the scheme already stressed that only those properly trained should operate the machinery and that there was no evidence to suggest the reverse was happening. Again, we concluded that the motoring organisations and others represented on my Group should bring any evidence of wrong doing to the Department's attention.

15. We next looked at the role of local authorities and how they could be encouraged to take on testing work. It is clear that the costs local authorities incur are related to the testing activity they undertake and how many offenders they fine. Therefore, they face a shortfall in funding if the numbers caught offending are small, even if offenders are fined vigorously. We recommend that should central government wish to promote this initiative, it should be for central government to address the funding shortfall. One possibility would be, where necessary, to increase allocations made to authorities undertaking the testing programme through their Local Transport Plan allocation. We recommend effective funding transfer mechanisms between the various sections of the local authority should be put in place to ensure the service is delivered effectively. Alternatively, we recommend the Government should give careful consideration to allowing authorities to use revenue from congestion charging or workplace parking levies to fund pollution enforcement activities.

16. We also considered who should be allowed to stop vehicles. We were advised that at present, only police officers in uniform had this power although consideration is being given to extending it to traffic wardens. At this point I have to say there is a difference in opinion between Group members on this extension of powers to civilian staff, with some strongly in favour of it and others having serious reservations. We merely report here that the RAC Foundation are content for the power to stop vehicles to be extended to Traffic wardens (but not local authority Parking Attendants) whilst the AA have yet to be persuaded that anyone other than a police officer in uniform should be allowed to stop a vehicle. We do not make a recommendation on this point as I appreciate this possible extension of power must be considered in a much wider context.

17. There are also varying views on the desirability of stopping large numbers of vehicles many of whom are found not to have committed an offence. On the one hand, the argument was put that the stopping of vehicles is a very strong deterrent. On the other, it is argued that stopping too many innocent motorists would bring the scheme into disrepute and that therefore enforcement activity should be targeted purely on vehicles that appear prime candidates as gross pollutants. To help with the problem we recommend that the Department should look to see whether a cheaper and more accurate way of screening out non-offenders' vehicles could be introduced so as better to target offenders. Any targeting will need to be carefully supervised in order to avoid accusations of discrimination. In the meantime, I have once again asked the motoring organisations and others to provide the Department with any evidence they may have of unreasonable numbers of motorists being stopped. One of the Group members also supported the testing of other matters, such as lights and tyres, on cars that fail the emission test.

18. The Group also considered whether there should be an additional appeals procedure. We were advised that there was already a right of appeal to the local authority and that as the offence was a criminal one, it could also be pursued through the courts. Whilst this was accepted by most Group members as sufficient, some still considered that a formal local authority appeals procedure, with an independent adjudicator, should be established. Most still felt that this was unnecessary given the availability of an action in the courts. Indeed, the LGA considered that as this was a criminal offence, it would be impossible to bring it within the sphere of the Adjudication Procedure unless the offence were also decriminalised (as the Adjudication Procedure only applies to decriminalised offences).

19. On balance, we have decided not to recommend a formal local authority appeals procedure at this stage. But we recommend that any informal appeals procedure should ensure:

• The local authority must make clear in its Fixed Penalty Notice that offending motorists have a right of appeal to the local authority
• The Fixed Penalty Notice must also make it clear to appellants that they have the right to go further (to court)
• That the local authority must be prepared to confirm it was operating in accordance with the rules, that the tester was properly trained and that a policeman (or someone else with powers to stop vehicles) was there
• That the local authority must be ready to demonstrate that appeals to it have been considered properly

20. We recommend ministers should keep this matter under review. In particular, if it appears after a year or two that a high proportion of offenders have threatened to go to court in order to discourage local authorities from prosecuting, the case for decriminalising the offence should be considered carefully. We also recommend that the motoring organisations should be kept advised of the results of the informal appeals made to authorities to ensure that appeals are not being turned down automatically.

21. In the light of these deliberations, we considered which of the options in the Department's paper we favoured. We recommend that a modified version of the one set out in paragraph 16(ii) - described there as the rolling out of a "softer" version of the scheme - should be introduced.

22. At present, the Department is recommending that to have a penalty waived altogether, a vehicle must be rectified within 2 weeks and have passed an approved emissions test in the last 3 months. We recommend that, in addition, the penalty should also be waived for those who have their vehicle rectified within 2 weeks and can prove that the vehicle has been serviced in accordance with the manufacturer's schedule over a given period of time (say 6 months to a year) and that all reasonable care has been taken.

23. We also recommend that the Department should consider what action, if any, should be taken in cases where vehicles have been serviced properly, and reasonable care taken, and a design or construction fault in the vehicle has caused that vehicle to fail an emissions test.

24. We are content that the Department should simultaneously continue to consider introducing the other measures outlined in paragraph 12 of their paper.

25. As I have said I have been provided with a copy of the guidelines covering the testing regime which makes it clear that some of the above is already covered in this document. However, as this was not available to Group members when we met, I think it is right that our recommendations should be based on the Group's deliberations rather than taking account of this existing guidance. That said, we would be very pleased to offer advice on the guidelines should they be revised prior to the scheme's extension.