Scottish Government

CHAPTER 5 Fixed Penalty Notices Roads (Scotland) Act 1984

5.1 Legislative Powers Applicable to R(S)A 1984

Schedule 8B of the R(S)A as inserted by the T(S)A provides that:

1 (1) An authorised officer of a road works authority may, if he has reason to believe that a person is committing or has committed a fixed penalty offence, give that person a fixed penalty notice in relation to that offence.

(2) In this Schedule "fixed penalty notice" means a notice offering a person the opportunity of discharging any liability to conviction for a fixed penalty offence by payment of a penalty.

2 A fixed penalty notice for an offence may not be given after such time relating to the offence as may be prescribed

5.2 R(S)A Fixed Penalty Offences : Action by Roads Authority

When a roads authority becomes aware of a fixed penalty offence under section 58 or section 85 of the Roads (Scotland) Act, they should make reasonable enquiries to ascertain the person responsible for occupying the road for the deposit of building materials, erecting staging or scaffolding projecting over part of the road or depositing a builders skip on the road. On identifying the person responsible, the roads authority should request that a retrospective application be submitted by that person. This application should provide full information about the applicant and the road occupation requested. If the application is acceptable, the roads authority will normally grant permission for the road occupation to continue. If permissions is granted, then the roads authority must enter the information onto the Scottish Road Works Register in accordance with any applicable regulations made under section 112B of the New Roads and Street Works Act. If permission is not granted or no application is received, then it is recommended that the roads authority should enter such details of the unauthorised road occupation as are available to them on the Scottish Roads Works Register.

Whether or not permission is granted for continuing occupation of the road, the roads authority may issue a fixed penalty notice in relation to the earlier unauthorised occupation. If a retrospective application has been made, it is reasonable to expect the roads authority to act with due dispatch if a fixed penalty notice is to be given. A fixed penalty notice will not, therefore, be issued more than 60 days after receipt of a retrospective application for an unauthorised road occupation.

5.3 Fixed Penalty Offences under R(S)A 1984 (see APPENDIX F)

5.4 Building Materials, Staging or Scaffolding

5.4.1 Legislation

Section 58(1) and (2) of the R(S)A states:

(1) a person who without, or otherwise than in accordance with, the written permission of the roads authority, in conducting operations for the construction, repair, maintenance or demolition of any building, occupies for the purpose of depositing materials or otherwise in connection with those operations, a part of a road, whether public or private, or erects staging or scaffolding which projects over a part of a road, commits an offence.

(2) Such permission as is mentioned in subsection (1) above may be granted either unconditionally or subject to such conditions, including conditions as to the duration of the permission, as may be specified therein; and notwithstanding anything in any enactment or in any rule of law, a person who complies with the permission (including the conditions) does not by the occupation or erection in respect of which the permission is granted commit an offence….

5.4.2 Fixed Penalty Offences and Notices under R(S)A

Schedule 8A of the R(S)A and with regulations issued in 2007, specifies fixed penalties for the following offence:

under section 58(1) of R(S)A, deposit of building materials in or erection of scaffolding over part of a road without or other than in accordance with permission. Roads authorities may therefore issue an FPN on anyone who occupies the road for depositing building materials or erects staging or scaffolding in connection with the construction, repair, maintenance or demolition of any building for the following offences:

(a) no permit for depositing of any building materials in a road;

(b) no permit for erecting staging or scaffolding over a road;

(d) failure to comply with conditions specified in the permit.

5.5 Builders' Skips

5.5.1 Legislation

Section 85(1) to (5) of the R(S)A states:

(1) A builders' skip shall not be deposited on a road without,

(a) The written permission of the roads authority; and

(b) Its being clearly and indelibly marked with its owner's name and with his telephone number or address.

(2) Such permission as is mentioned in subsection (1) (a) above may be granted either unconditionally or subject to such conditions as may be specified in the permission; and the conditions may in particular relate to the siting and lighting of the skip, the care of the contents of the skip and the removal of the skip at the end of the period of permission.

(3) An owner of a skip who uses it, or causes or permits it to be used, on a road in contravention of this section commits an offence.

(4) In proceedings for an offence under subsection (3) above it shall be a defence, except in relation to a contravention of subsection (1)(b) above, to prove that some other person undertook the responsibility of complying with the permission or condition contravened, and that the offence was committed without the consent or connivance of the owner; and that other person may be charged with and convicted of the contravention as if he were the owner.

(5) In this section and in section 86 of this Act, "builders' skip" means a container designed to be carried on a road vehicle and to be placed on a road for the removal and disposal of builder's materials, rubble, waste, household and other rubbish or earth.

5.5.2 Fixed Penalty Offences and Notices under R(S)A

Schedule 8A of the R(S)A and with regulations issued in 2007, specifies fixed penalties for the following offences:

Under Section 85(3) as read with (4) of R(S)A:

(a) Deposit of builder's skip on road without permission of roads authority.

(b) Failure of owner of skip or other person to ensure conditions of permission complied with.

Roads authorities may therefore issue a FPN on either:

(a) the owner of skip, or

(b) another person who undertook the responsibility for obtaining the permission and/or complying with the conditions in that permission.

and for the following offences:

(a) no permit for depositing of skip on a road;

(b) failure to comply with conditions specified in the permit.

Only the owner of the skip may be issued with a FPN for the offence of:

(c) skip not clearly or indelibly marked with its owner's name and with his telephone number or address.

5.6 Matters Related to all R(S)AFPNs.

5.6.1 Exemptions

Roads authorities cannot give a FPN under the R(S)A on statutory undertakers for depositing building materials, erecting staging, scaffolding and skips in connection with their road works properly notified under NRSWA. Any occupation by statutory undertakers, for materials, erecting staging or scaffolding and skips, should be within the working space in accordance with the Safety at Street Works and Road Works Code of Practice. Any offences resulting from non-compliance under this Code of Practice can be pursued under existing NRSWA legislation.

5.6.2 Extending the Period for Payment

If the last day of the period specified in 3.1 does not fall on a working day, the 29 consecutive day period of payment of discounted amount is extended until the end of the next working day but cannot be extended further by the roads authority.

5.6.3 Removing or Repositioning of Builders' Skips Causing Danger or Obstruction

A FPN may be given under S85 (3) for placing a skip without permission or failing to comply with the conditions in the permission, but contains no requirements to rectify the problem e.g. remove the skip. S86 (2) can be used in conjunction with the FPN to have the skip removed or repositioned and recover any costs.