Extension toll orders

HL Deb 24 January 1991 vol 525 cc386-94

(".—(l) An order authorising the charging of tolls by the highway authority (an "extension toll order") may be made in relation to a road which is or has been subject to a concession.

(2) An extension toll order relating to a special road for which the Secretary of State is the highway authority shall be made by the Secretary of State; and an extension toll order relating to a road for which the highway authority is a local highway authority shall be made by that authority and confirmed by the Secretary of State.

(3) Where the concession agreement terminates by effluxion of time, an extension toll order must be made before, and shall have effect from, the end of that period.

(4) Where the concession agreement is terminated before the end of that period, an extension toll order must be made so as to come into force not later than two years after the termination of the agreement.

(5) The following provisions of this Act apply in relation to an extension toll order as in relation to a toll order under section 6(1)— section 7(1) and (2) (the toll period), section 9 (amount of tolls chargeable by highway authority), section 10 (application of enactments relating to monopolies, &c.), section 11 (variation or revocation of order), and sections 12 to 16 (further provisions with respect to tolls).

(6) An extension toll order made by the Secretary of State, and an instrument made by the Secretary of State confirming an extension toll order made by a local highway authority, shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

The provisions of Schedule 2 (procedure in connection with toll orders) do not apply.").

The noble Lord said: My Lords, this amendment was spoken to with Amendment No. 15. I beg to move.

On Question, amendment agreed to.

Clause 30 [Variation or revocation of toll order]:

Lord Brabazon of Tara moved Amendments Nos. 28 to 31: Page 18, leave out lines 7 and 8 and insert: ("(1) A toll order may be varied or revoked—

1. (a) by an order made by the Secretary of State if he made the toll order; and
2. (b) by an order made by the local roads authority and confirmed by the Secretary of State in any other case.

(1A) The Secretary of State may confirm an order made by a local roads authority either without modifications or subject to such modifications as he thinks fit."). Page 18, line 13, leave out ("Secretary of State") and insert ("roads authority making the order"). Page 18, line 15, leave out from beginning to ("by") and insert ("The power conferred on the Secretary of State by this section to vary, revoke or confirm an order is exercisable"). Page 18, line 19, leave out ("such an order") and insert ("an order under this section").

The noble Lord said: My Lords, I spoke to Amendments Nos. 28 to 31 inclusive with Amendment No. 25. I beg to move these four amendments en bloc.

On Question, amendments agreed to.

Clause 31 [Transfer or termination of assignation]:

Lord Brabazon of Tara moved Amendment No. 32: Page 18, line 21, leave out ("not") and insert (", with the consent of the special road authority,").

The noble Lord said: My Lords, this amendment was spoken to with Amendment No. 14. I beg to move.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 33: Page 18, line 22, leave out subsection (2) and insert: ("(2) Where an assignation granted by the special road authority under section 25(1) is terminated before the end of the toll period, the authority shall take reasonable steps to grant a fresh assignation to a new concessionaire and the authority may charge and collect tolls in the same way as a concessionaire within the period of two years beginning with that termination but, within that period, only until the earliest, if any, of the following events—

1. (a) the granting of a fresh assignation;
2. (b) the expiry of the toll period;
3. (c) the commencement of an extension toll order.

(2A) References in this Part (including this section) to an assignation granted under section 25(1) shall include references to a fresh assignation granted by virtue of subsection (2) above.").

The noble Lord said: My Lords, this amendment was spoken to with Amendment No. 15. I beg to move.

On Question, amendment agreed to.

Clause 12 [Further provisions as to charging of tolls]:

Lord Swinfen moved Amendment No. 34: Page 7, line 14, after ("order") insert ("shall contain provision exempting from liability for tolls, any vehicle lawfully displaying a badge issued to a disabled person under section 21 of the Chronically Sick and Disabled Persons Act 1970 and").

The noble Lord said: My Lords, I beg to move Amendment No. 34 with which are grouped Amendments Nos. 35 and 36. We went into this matter of the exemption of tolls for disabled people in some detail at Committee stage, so I shall not weary your Lordships with a long dissertation this evening. My noble friend the Minister has gone some way to satisfying what we want, but I shall be grateful if he will clarify one important point.

Are the amendments of himself and of his noble friend Lord Strathclyde solely giving exemption to those with a vehicle that is exempted from duty where the toll road is an estuarial crossing? If that is the case it is not satisfactory and we may have to come back to it at a later stage.

I agree that not all disabled people need necessarily be exempt from tolls, but those who are so disabled as to be exempt from the vehicle excise licence should, in my view, be exempt from all tolls, part of the reason being that they are debarred because of their disabilities from using alternative forms of transport. They are not able to get on buses; they are not even able to use trains. Even though buses may have to pay the toll, the individual passengers are probably paying only a small proportion of it. I shall be interested to hear what my noble friend has to say. I beg to move.

Lord Clinton-Davis

My Lords, I fully support the amendment moved by the noble Lord, Lord Swinfen. I have little to add to what he has said today and to what was said in the earlier debate, save that the solution that he is seeking, and which I endorse, is not without precedent. The Dartford Tunnel and the Tyne Tunnel exempt disabled people from tolls if they are in receipt of the exemption that he is seeking; namely, if they receive an exemption from vehicle excise duty.

It is perfectly legitimate for the noble Lord to put the point to the Minister, because if the Minister were to respond that the exemption that he has in mind is so constrained, then it would hardly be worth having and I should hope that the House would then seek to challenge the Minister on that matter.

However, the right course is to hear what the Minister has to say. Certainly he has not so far gone anything like far enough, but we hope that he will be prepared to enter into a much greater commitment so far as the future passage of this Bill is concerned.

Lord Brabazon of Tara

My Lords, obviously the noble Lord is indeed hard to please. I am, however, grateful to my noble friend for tabling this amendment. He is certainly right to come back to the question, although I have put down a separate amendment which, as he said, proposes a rather different solution. I can also tell noble Lords that I have been in correspondence with RADAR, the Spinal Injuries Association and the Joint Committee on Mobility for Disabled People, in response to letters from them, explaining our thinking.

There are two differences between the two amendments before us. The first is that my amendment takes as the basis for exemption from tolls not the orange badge scheme, but the arrangements for exemption from vehicle excise duty under the Vehicle Excise Act 1971. I point out to the noble Lord, Lord Clinton-Davis, that this follows the precedent in the Dartford Thurrock Crossing Act. We believe it is the fairest way of targeting help at those who need it; it ties in logically with the purpose of the vehicle excise duty exemption, and the payment of mobility allowance, which go hand-in-hand. These exemptions are rightly designed to give financial assistance to disabled people in respect of their travel needs, as indeed would an exemption from tolls.

As I explained at Committee stage, the purpose of the Orange Badge scheme is to allow disabled people who have considerable walking difficulties to park as near as possible to places they wish to visit. Unlike the VED exemption, its aim is not to assist disabled people financially with their travel requirements. There are well over a million orange badge holders in the country and the Government know what difficulties are caused for both issuing and enforcement authorities by the potential abuse which the existing scheme offers.

As my noble friend will be aware, proposals will shortly be brought forward to cope with these problems.

I turn now to the second difference in my amendment from that proposed by my noble friend. The difference is that it applies only to cases where the toll is limited, either because the toll collector is the highway authority, or because the road is an estuarial crossing and there is no convenient free alternative.

My noble friend suggested that we should be willing to go further in offering assistance to disabled people. I first stress that we are looking for private financing of these roads. The successful bidder in a competition for a road will invest a great deal of money, at considerable risk, into a commercial project. These roads will be in genuine competition with other roads which will have the great advantage of being free at the point of use, and road users including disabled people will have the option of using them. In these circumstances we believe it is right that a decision to exempt disabled people from tolls should be for the concessionaire's judgment. Under Clause 12 of the Bill as currently drafted he will be able to do so and he may well decide that the cost of doing it is well worth the good will generated. I can also see why it would be in the interests of his business to offer a reduced toll which people with disabilities would be more than willing to pay in respect of the benefits the road has to offer.

However, we recognise the strength of the argument that for many disabled people their car is their only means of transport; that the imposition of a toll on a route where there is no convenient free alternative would unduly restrict their mobility; and that the loss of revenue in a case where the highway authority is the toll collector would be justifiable. That is why we have come forward with this amendment following the debate at Committee stage and representations we have received.

I thank my noble friend for his contribution to the debate and hope that my proposed amendment will meet the anxieties expressed.

Lord Swinfen

My Lords, I thank my noble friend for his reply. I am not sure that the amendments go far enough totally to satisfy me and my advisers. I shall read what my noble friend has said and consider it seriously. I shall reserve my right to come back on Third Reading with another amendment to improve the position. Many disabled people who qualify for an orange badge may be in a position to invest in companies which take such concessions and, therefore, earn an income. However, most of those who are exempt from the vehicle excise licence have little earning power and a small income and, therefore, are unlikely to be able to invest in such companies. We must take care to look after them properly. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Brabazon of Tara moved Amendment No. 35: Page 7, line 17, at end insert: ("( ) A toll order which specifies maximum tolls shall contain provision exempting from liability to pay any toll which is subject to a maximum—

1. (a) a vehicle exempted from duty under section 4(1) (g) of the Vehicles (Excise) Act 1971 if it is being used for the purposes of an invalid, and
2. (b) a vehicle so exempted under section 7(2) of that Act if it is being used by or for the purposes of a person suffering from a physical defect or disability.").

On Question, amendment agreed to.

Clause 32 [Further provision as to charging of tolls]:

Lord Brabazon of Tara moved Amendment No. 36: Page 18, line 44, at end insert: ( ) A toll order which specifies maximum tolls shall contain provision exempting from liability to pay any toll which is subject to a maximum—

1. (a) a vehicle exempted from duty under section 4(1) (g) of the Vehicles (Excise) Act 1971 if it is being used for the purposes of an invalid, and
2. (b) a vehicle so exempted under section 7(2) of that Act if it is being used by or for the purposes of a person suffering from a physical defect or disability.").

On Question, amendment agreed to.

Clause 15 [Facilities for collection of tolls]:

Lord Clinton-Davis moved Amendment No. 37: Page 9, line 5, at end insert: ("(2A) Subsection (2) above shall not apply in any case where facilities for the collection of tolls are replaced or modified or in any case where new facilities are provided after the commencement of the toll period.").

The noble Lord said: My Lords, we are seeking to limit the exemption from planning permission provided by Clause 15(2) to toll collection facilities which are constructed at the same time as the road. As presently drafted subsection (2) gives a blanket exemption from planning permission to all toll collection facilities which may be associated with a concession road. In Committee the noble Lord, Lord Brabazon, opposed an amendment that we then tabled intended to delete that subsection. In doing so he said: The reasoning behind the subsection is by no means as sinister as the noble Lord makes out". The word "sinister" was putting the matter a little high but sometimes the Minister reacts in that way to anything that I say. He introduces words such as "sinister", "excited" and so forth but it does not matter. The Minister continued: It is simply that, having gone through a complicated and exhaustive procedure to authorise a road scheme and the power to toll, it seems superfluous to expect the concessionaire to engage in a quite separate procedure to obtain planning permission for toll booths and their essential facilities such as rest rooms for toll collectors". He later added: I understand also the concern about the breadth of the expression 'facilities for the collection of tolls'. It may be that we have not yet got the right balance. I shall look into the matter further … I shall table an appropriate amendment at Report stage if we can come up with a better solution".— [Official Report, 4/12/90; col. 169.] The Minister has not done so. Therefore, one assumes that he has not been particularly exhaustive in attempts to find a better solution. That is why we now return to the subject.

In our debate in Committee I sought to anticipate the argument against the necessity for a concessionaire to apply for permission to have toll collection facilities after obtaining approval for the road scheme as a whole. I argued then, and I repeat the argument today because it is still true, that technological advances will be made. It is almost certain that the type of facilities that are most appropriate for efficient and effective toll collection will alter during the life of the toll order and concession agreement. Therefore, it is as important that any new facilities are subject to the same degree of scrutiny as the initial proposals.

That is the purpose behind the amendment that I have tabled today. We retain the general exemption from planning permission for toll collection facilities but remove that exemption in the case of alterations to facilities and the provision of new facilities following the start of the toll period. I beg to move.

6.45 p.m.

Lord Brabazon of Tara

My Lords, the noble Lord, Lord Clinton-Davis, is right to remind me that in response to a similar amendment tabled in Committee I promised to look into the matter further. However, I was careful not to commit myself to an amendment at Report stage. This matter is being discussed with colleagues in the Department of the Environment but we are not yet in a position to put down an amendment, nor, I fear, to give any clearer indication as to our conclusions.

The compromise proposed by the noble Lord is interesting and I shall study it carefully. Unlike the amendment put down in Committee it would not delay the construction of new toll roads by complicating the authorisation procedure. But it raises another problem in the way that it deals with the replacement of facilities in the same way as modifications and additions. There are other matters that we need to consider and I must beg your Lordships' indulgence a little longer as discussions proceed. I hope that meanwhile I can persuade the noble Lord to withdraw this amendment.

Lord Clinton-Davis

My Lords, that was a positive reply; the first positive reply that we have received. No, that comment is unfair because the Minister was reasonably positive the last time round.

I thank the Minister for his comments about my amendment; that it is interesting and worthy of consideration by the two departments and that discussions are taking place. That is helpful but he did not indicate when the discussions are likely to be concluded. Perhaps before I sit down he could give the House such an indication.

Lord Brabazon of Tara

My Lords, with the leave of the House, I cannot give a more clear indication. The Bill must go through another place and there is still a long time before it completes the process. I shall try to obtain a conclusion on the subject before the Bill leaves this House, but I cannot give an absolute undertaking.

The noble Lord stated that I have been more considerate in relation to this amendment. I have brought at least three or four amendments before your Lordships' House this afternoon which are specifically in response to points raised by the noble Lord at the last stage of the Bill. That is quite a good record.

Lord Clinton-Davis

My Lords, I am not complaining about what the noble Lord has done in response on a previous occasion. I am complaining about the reaction to some of the amendments that we have put down tonight, which have not been so successful. I am very grateful for the concessions that the noble Lord has made in relation to previous debates.

I appreciate the Minister's difficulty in being able to provide any kind of timetable. The Bill has a long way to go, but it is good to know that matters are being further considered by the two departments.

Amendment, by leave, withdrawn.

Clause 16 [Restriction of access to toll roads]:

Lord Brabazon of Tara moved Amendments No. 38: Page 9, line 22, leave out subsections (2) and (3).

The noble Lord said: My Lords, Amendment No. 38 applies to England and Wales and Amendment No. 39—to which I shall also speak—applies to Scotland. They do not apply any change of policy with regard to the requirement under Clause 16(1) and Clause 36(1) that the consent of the highway authority, and, in the case of a privately financed road, the concessionaire must be obtained before a road giving access to a toll road is constructed. Nor have we changed the policy that a planning authority should give the concessionaire notice of any proposal to build such an access road, which was the purpose of subsection (2). We have decided that requirements of the kind involved in Clause 16(2) and (3) are more appropriately placed in a general development order under the Town and Country Planning Act 1990 than in separate regulations under the Bill. The general development order contains other, similar requirements and it is obviously beneficial for those in the planning world if such requirements are brought together in one document.

With that explanation of our intention, I hope that noble Lords will accept the amendment. I beg to move.

Lord Clinton-Davis

My Lords, I should like to seek clarification in relation to one or two small points. I thank the Minister for the amendment, having stated what he has about it.

In the Notes on Clauses which the noble Lord was kind enough to provide earlier, it is stated that subsection (2) was needed to prevent the granting of permission without the knowledge of the highway authority and concessionaire, which could make it difficult in practice to refuse a means of access. Would the noble Lord be good enough to confirm that the deletion of subsections (2) and (3) will not make it difficult in practice for a highway authority to refuse its consent for the creation of a new access for a toll road"?

Lord Brabazon of Tara

My Lords, there is no change in our policy in relation to any of the points raised by the noble Lord. We propose to bring in the same provision under the general development order under the Town and Country Planning Act. I can assure the noble Lord that the effect will be exactly the same.

On Question, amendment agreed to.

Clause 36 [Restriction of access to toll roads]:

Lord Brabazon of Tara moved Amendment No. 39: Page 21, leave out lines 6 to 13.

On Question, amendment agreed to.

[Amendment No. 40 not moved.]

Clause 23 [Interpretation]:

Lord Brabazon of Tara moved Amendment No. 41: Page 14, line 12, column 2, leave out ("section 1(1)") and insert ("sections 1(1) and 5(1)").

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 42:

Page 14, line 12, at end insert:

("extension toll order

section (Extension toll orders) (1)")

On Question, amendment agreed to.

Clause 41 [The Roads (Scotland) Act 1984 and the interpretation of Part II]:

Lord Brabazon of Tara moved Amendment No. 43: Page 22, line 34, at end insert: (" "extension toll order" means a toll order made under section (Extension toll orders)(1) authorising the charging of tolls for a new toll period;").

On Question, amendment agreed to.

Lord Strathclyde moved Amendment No. 44: Page 23, line 17, leave out ("25") and insert ("25(1)").

The noble Lord said: My Lords, the amendment is a technical one. I beg to move.

On Question, amendment agreed to.

Clause 42 [Streets, street works and undertakers]:

Lord Brabazon of Tara moved Amendments No. 45: Page 24, line 11, leave out subsection (5) and insert: ("(5) References in this Part to the undertaker in relation to apparatus in a street are to the person entitled, by virtue of a statutory right or a street works licence, to carry out in relation to the apparatus such works as are mentioned in subsection (3); and references to an undertaker having apparatus in the street, or to the undertaker to whom apparatus belongs, shall be construed accordingly.").

The noble Lord said: My Lords, I should also like to speak to Amendment No. 46. Amendment No. 45 is necessary in order to provide a better definition of the term "undertaker" where it is used in relation to apparatus in this part of the Bill. An undertaker is defined in Clause 42 as the person for whose purposes the apparatus is to be or has been placed in the street. However, that definition would lead to uncertainty in cases where apparatus placed by one person is subsequently used for one or more others, for example where telecommunications cables that are used by several operators are placed in a disused gas or water pipe.

By defining the undertaker as the person entitled to carry out street works on the apparatus in question, any doubt as to who is the undertaker for the purposes of the Bill is avoided. I beg to move.

Lord Tordoff

My Lords, I was under the impression that it was the intention of the Government to take Amendments Nos. 70, 72, 74, 77 and 79 with Amendments Nos. 45 and 46.

Lord Brabazon of Tara

My Lords, I think that those amendments are being taken with the next two Amendments, Nos. 47, 48, and also 80 and 82.

On Question, amendment agreed to.

Clause 99 [Roads, road works and undertakers]:

Lord Brabazon of Tara moved Amendment No. 46: Page 55, line 26, leave out subsection (5) and insert: ("(5) References in this Part to the undertaker in relation to apparatus in a road are to the person entitled, by virtue of a statutory right or a permission granted under section 101, to carry out in relation to the apparatus such works as are mentioned in subsection (3); and references to an undertaker having apparatus in the road, or to the undertaker to whom apparatus belongs, shall be construed accordingly.")

On Question, amendment agreed to.