Scottish Government

Dear Sir/Madam

CONSULTATION ON REGULATIONS UNDER SECTION 49, 55 & 56 OF THE TRANSPORT (SCOTLAND) ACT 2001

1. This letter seeks comments on draft regulations under sections 49, 55 & 56 of the Transport (Scotland) Act 2001. The proposed regulations contain provisions related to the enforcement powers and procedures for charges and penalty charges. A copy of the draft regulations is attached.

2. The Transport (Scotland) Act 2001 provides powers to local authorities (as local traffic authorities) to introduce road user charging schemes in Scotland, where this can assist to achieve the objectives in an authority's local transport strategy. The Act also allows traffic authorities to work in partnership to establish a joint charging scheme. It will be for local authorities to decide whether they wish to bring forward a scheme. In addition, the powers apply to certain bridge joint boards.

3. The Act requires that every charging scheme be established by an order that will need prior approval of the Scottish Ministers. The order is the final part of a two-stage approval and consultation process that local authorities and bridge joint boards will have to follow if they are to introduce a scheme.

4. Scottish Ministers intend that all of the net revenue from any charging scheme is ring-fenced for the purpose of directly or indirectly facilitating the achievement of policies in the authority's local transport strategy, or strategies in the case of a joint scheme. They also intend that the authority promoting the scheme establishes transparent annual accounting arrangements to demonstrate that the net revenue is used for this purpose.

5. In addition, the Scottish Ministers have set down the following policy criteria that any charging scheme will have to meet:

• that the scheme will reduce congestion and/or noise and emissions;

• that the net revenues from charging will be additional;

• that there is fair treatment of those who pay the charge (and/or suffer the congestion or environmental problem) and those who benefit from the scheme;

• that a range of public transport improvements are in place before charging is introduced, with further improvements to follow.

6. The Transport (Scotland) Act 2001 provides Scottish Ministers with powers to introduce regulations under various sections of the Act. This paper seeks comments on regulations under sections 49, 55 & 56 of the Act, which deal with liability for charges and penalty charges, and powers relating to the examination, immobilisation and removal of vehicles. Some specific points that we would be interested to hear views on are listed on the following page.

7. You will note that in Regulation 4, 'DVLA' appears in square brackets at several places. The Scottish Executive's solicitors are currently investigating whether the DVLA is the appropriate body that should be notified in these circumstances.

8. You will wish to note that regulations under s.64(2) of the Act, which are referred to in Regulations 8(3)(a) and 12(3), have not yet been made by Scottish Ministers.

9. Any comments on the draft regulations should be sent to:

10. The closing date for comments is 28 June 2002.

Yours sincerely,

STEVEN CHRISTIE

SPECIFIC POINTS HIGHLIGHTED FOR COMMENT

1. Regulation 2(1) defines an 'authorised person' for the purposes of these regulations. We would welcome views on whether this is a suitable definition, or if other persons, or fewer persons, should be included in the definition.
2. Should these regulations lay down specific circumstances that should result in charging scheme penalty charges being imposed?
3. Should there be provisions in connection with notification procedures?
4. Regulation 4(6) deals with charges and penalty charges incurred by someone in a hired car. We believe that the hirer should be responsible for paying these fees but would welcome suggestions as to how this could best be enforced, without unduly burdening hire companies.
5. Is the title of these regulations appropriate?

SCOTTISH STATUTORY INSTRUMENTS

2002 No.

TRANSPORT

The Road User Charging (Liability for Charges and Examination, Immobilisation and Removal of Vehicles) (Scotland) Regulations 2002

Made 2002

Laid before Parliament 2002

Coming into force 2002

The Scottish Ministers, in exercise of the powers conferred by sections 49(4)(b), 55(1) and (2), 56(1),(2) and (4) and 81(2) of the Transport (Scotland) Act 2001() and of all other powers enabling them in that behalf hereby make the following regulations.

Citation and commencement

1. These Regulations may be cited as the Road User Charging (Liability for Charges and Examination, Immobilisation and Removal of Vehicles) (Scotland) Regulations 2002 and shall come into force on 2002.

Interpretation

2.-(1) In these Regulations-

"authorised person" means a local authority, an employee of a local authority, a constable or any other person authorised in writing by a charging authority to act as an authorised person for the purposes of these Regulations;

"custodian" in relation to a vehicle removed under these Regulations means-

(a) if the vehicle has in accordance with regulation 11 been delivered to the charging authority, that authority; or

(b) if the vehicle has been so delivered to another person authorised by the charging authority to keep vehicles so removed in his custody, that other person;

"hiring agreement" has the same meaning as in section 66 of the Road Traffic Offenders Act 1988();

"outstanding" in relation to a penalty charge shall be construed in accordance with regulation 10(2);

"penalty charge" means a charging scheme penalty charge imposed by virtue of regulation 3;

"the 2001 Act" means the Transport (Scotland) Act 2001;

"vehicle" means motor vehicle; and

"vehicle-hire firm" has the same meaning as in section 66 of the Road Traffic Offenders Act 1988.

(2) For the purposes of these Regulations the registered keeper shall be presumed to be the owner of a vehicle registered under the Vehicle Excise and Registration Act 1994().

Imposition of penalty charges

3.-(1) A charging scheme may provide that a penalty charge shall be imposed in respect of a vehicle where-

(a) the vehicle has been used or kept on a road in the charging area to which the scheme applies;

(b) the vehicle falls within a class in respect of which a charge is imposed by the charging scheme;

(c) the road is a road in respect of which a charge is imposed by the charging scheme;

(d) events have occurred by reference to the happening of which a charge is imposed by the charging scheme; and

(e) the charge has not been paid in full within the time and in the manner in which it is required by the charging scheme to be paid.

(2) A charging scheme may further provide that penalty charges shall be imposed in respect of-

(a) the release of a vehicle from an immobilisation device fixed to it in accordance with regulation 9;

(b) the removal of a vehicle in accordance with regulation 10;

(c) the storage and release from storage of a vehicle so removed; or

(d) the sale or destruction of a vehicle so removed.

(3) A charging scheme shall specify the time and manner in which a penalty charge is to be paid and may provide that the amount of a penalty charge-

(a) is to be reduced by such proportion as may be specified in that behalf in the scheme if it is duly paid within such time and in such manner or circumstances as may be so specified; or

(b) is to be increased by such proportion as may be specified in that behalf in the scheme if it is not paid within such time and in such manner or circumstances as may be so specified.

Liability for charges and penalty charges

4.-(1) In this regulation-

(a) "relevant vehicle" means a vehicle in respect of which charges or penalty charges are imposed by a charging scheme arising out of its having been used or kept on a road in a charging area designated by the scheme as a road in respect of which a charge is imposed; and

(b) "relevant time" means the time at which a relevant vehicle was so used or kept on that road.

(2) The circumstances in which, and the persons by whom, charges and penalty charges imposed in respect of a relevant vehicle by a charging scheme are to be payable otherwise than by the registered keeper are those specified in paragraphs (3) to (6).

(3) Where the relevant vehicle is not registered under the Vehicle Excise and Registration Act 1994, charges and penalty charges shall be payable by the person by whom the relevant vehicle was used or kept on a road at the relevant time.

(4) Where at the relevant time the relevant vehicle was kept by a person who was a motor vehicle trader as defined by regulation 12A(6) of the Road Vehicles (Registration and Licensing) Regulations 1971() ("the 1971 Regulations") and that person was not the registered keeper, charges and penalty charges shall be payable by that person.

(5) Where before the relevant time the registered keeper had notified the [DVLA] in writing, in accordance with regulation 12 or 12A of the 1971 Regulations, that there had been a change of ownership of the relevant vehicle so that it was no longer kept by him, charges and penalty charges shall be payable by the person to whom the vehicle was kept as the relevant time.

(6) Where at the relevant time-

(a) the registered keeper of the relevant vehicle was a vehicle-hire firm;

(b) the relevant vehicle was hired from that firm under a hiring agreement;

(c) the person hiring it signed a statement of liability acknowledging that the person accepts liability for any charges or penalty charges incurred under a charging scheme during the currency of the hiring agreement;

charges and penalty charges shall be payable by the hirer of the vehicle.

(7) The date on which the registered keeper shall be taken for the purposes of these Regulations to have notified the [DVLA] as mentioned in paragraph (5) shall be the date on which service on the [DVLA] is to be taken to have been effected in accordance with paragraph 4 of Schedule 1 to the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc. of Acts of the Scottish Parliament Order 1999() of-

(a) in a case where regulation 12 of the 1971 Regulations applies, notification of a change of ownership in accordance with paragraph (1A) of that regulation; or

(b) in a case where regulation 12A(2) or (3) of the 1971 Regulations applies, the part of the registration document referred to in paragraph (2)(a) or, as the case may be, (3)(a), of regulation 12.

Examining vehicles

5.- A charging scheme may confer power on an authorised person to examine a vehicle for the purposes of section 56(1) of the Act.

Entering vehicles

6.-(1) Subject to paragraph (2) any person on whom power is conferred by virtue of regulation 5 may enter a vehicle for the purposes of section 56(2) of the Act.

(2) The power conferred by paragraph (1) shall not be exercised by an authorised person who is not a constable, except in the presence of a constable.

Power to immobilise vehicles

7.-(1) A charging scheme may make provision for any case in which an authorised person has reason to believe that, in respect of a vehicle which is stationary on a road in a charging area-

(a) the vehicle is being used or kept on that road in contravention of the scheme; or

(b) there are such number of penalty charges outstanding with respect to the vehicle as may be specified in that behalf in the scheme,

and that such other circumstances apply as may be specified in the scheme.

(2) The charging scheme may provide that an authorised person or a person acting under the direction of the authorised person may-

(a) fit an immobilisation device to the vehicle while it remains in the place where it is found; or

(b) move it, or require it to be moved, to another place on that road or another road and fit an immobilisation device to the vehicle in that other place.

(3) Where an immobilisation device is fitted to a vehicle in accordance with this regulation, the charging scheme shall provide that the person fitting the device shall also fix to the vehicle an immobilisation notice-

(a) indicating that the device has been fixed to the vehicle and warning that no attempt should be made to drive it or otherwise put it in motion until it has been released from the device;

(b) stating that the vehicle may only be released from the device by or under the direction of an authorised person;

(c) stating that the notice must not be removed or interfered with except by or on the authority of an authorised person; and

(d) specifying the steps to be taken to secure its release including the penalty charges payable under the charging scheme and the person to whom and the means by which those charges may be paid.

Release of immobilised vehicles

8.-(1) Where a charging scheme makes provision for the immobilisation of vehicles the scheme shall provide that, where an immobilisation device is fitted to a vehicle in accordance with the scheme, the person fitting the device shall also fix to the vehicle an immobilisation notice indicating that the vehicle shall be released-

(a) if all outstanding penalty charges, or such outstanding penalty charges as the relevant charging scheme may prescribe for the purposes of this sub-paragraph, are paid to the charging authority;

(b) if any penalty charge imposed by the relevant charging scheme for the release of the vehicle from the immobilisation device is paid; and

(c) where at the time the device is fitted the vehicle is being kept on a road in the charging area in circumstances where a charge is payable, if that charge is also paid to the charging authority.

(2) For the purposes of these Regulations a penalty charge is "outstanding" if-

(a) it is a penalty charge imposed by a charging scheme in respect of the use or keeping of the vehicle in question in the charging area to which the scheme relates; and

(b) it has not been paid and is not subject to an outstanding appeal.

(3) For the purposes of paragraph (2)(b) a penalty charge is "subject to an outstanding appeal" if-

(a) representations have been made to the charging authority under Regulations

made by the Scottish Ministers under section 64(2) of the Act and the authority has not notified its decision with respect to the representations; or

(b) an appeal has been made under those Regulations and the appeal has not been determined.

Power to remove vehicles

9.-(1) A charging scheme may make provision for any case where an authorised person has reason to believe that in respect of a motor vehicle which is stationary on a road in a charging area-

(a) the subject is being used or kept on that road in contravention of the scheme;

(b) there are such number penalty charges outstanding with respect to the vehicle as may be specified in that behalf in the scheme; or

(c) an immobilisation device has been fixed to the vehicle in accordance with regulation and the outstanding penalty charges have not been paid in accordance with regulation ,

and that such other circumstances apply as may be specified in the scheme.

(2) A charging scheme may provide that, in such a case, the authorised person or a person acting under his direction, may remove the vehicle and deliver it to the charging authority or to a person authorised by that authority to keep vehicles so removed.

(3) A vehicle removed by virtue of paragraph (2) may be driven, towed or removed by an authorised person, or a person acting under his direction, by such means as are reasonable in the circumstances and any necessary steps may be taken in relation to the vehicle in order to facilitate its removal.

Sale or destruction of removed vehicles

10 The charging scheme shall enable the custodian of a vehicle delivered to that person as mentioned in regulation 9(2) to dispose of the vehicle by selling it or dealing with it as scrap, as that person thinks fit.

Recovery of penalty charges in relation to removed vehicles

11.-(1) The charging scheme shall provide that where a vehicle has been removed and delivered into the custody of a custodian in accordance with regulation 9(2), the charging authority or the custodian may recover from the person who was the owner of the vehicle when the vehicle was removed the charges prescribed by the scheme for-

(a) its removal and storage; and

(b) if the vehicle has been disposed of, its disposal.

(2) Where, by virtue of paragraph (1)(a), any sum is recoverable in respect of a vehicle by a custodian, the authority or the custodian shall be entitled to retain custody of it until that sum is paid.

Taking possession of a vehicle

12.-(1) A charging scheme shall specify that a person ("the claimant") may take possession of a vehicle (with its contents) which has been removed and delivered to a custodian and has not been disposed of under regulation 11, if the conditions specified in paragraph (2) are satisfied.

(2) The conditions are that-

(a) the claimant satisfies the custodian that the claimant is the owner of the vehicle or authorised by the owner to take possession of the vehicle;

(b) all outstanding penalty charges in respect of the vehicle are paid to the charging authority; and

(c) any penalty charges imposed by the charging scheme in respect of the removal, storage or release from storage of the vehicle are paid.

(3) On giving the claimant possession of a vehicle pursuant to this regulation, the charging authority or custodian shall give the claimant a statement of the right of the owner (or the person in charge of the vehicle at the time it was immobilised or, where it was not immobilised, it was removed) to appeal pursuant to regulations made by the Scottish Ministers under section 64(2) of the Act of the steps to be taken in order to appeal and of the address to which representations made as mentioned in those Regulations should be sent.

Authorised to sign by the Scottish Ministers

St Andrew's House,

Edinburgh

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2002