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CONSULTATION DRAFT
SCOTTISH STATUTORY INSTRUMENTS
2007 No.
ROADS AND BRIDGES
The Road Works (Fixed Penalty) (Scotland) Regulations 2007
Made - - - - 2007
Laid before the Scottish Parliament 2007
Coming into force - - 2007
The Scottish Ministers, in exercise of the powers conferred by sections 108(5), 154A, 156 and 163(1) of, and paragraphs 2, 4(1), 5(2), 12(2) and (3), 13(2) and (3) of Schedule 6B to, the New Roads and Street Works Act 1991 (a) and of all other powers enabling them in that behalf, following consultation in terms of section 163A of that Act (b), hereby make the following Regulations:
Citation and commencement
1. These Regulations may be cited as the Road Works (Fixed Penalty) (Scotland) Regulations 2007 and shall come into force on [ ] 2007.
Interpretation
2. In these Regulations-
"the 1991 Act" means the New Roads and Street Works Act 1991;
"address", in relation to electronic communications, means any number or address used for the purposes of such communications;
"electronic communication" has the meaning given in section 15(1) of the Electronic Communications Act 2000 (c); and
"offence" means a fixed penalty offence.
Exemption
3. Road managers are exempted from the provisions of section 154A of, and Schedules 6A and 6B to, the 1991 Act.
Form of fixed penalty notice
4. A fixed penalty notice shall be in the form set out in Schedule 1.
Manner of service of fixed penalty notice
5. -(1) Where a person-
(a) has given a road works authority an address for service on that person of fixed penalty notices using electronic communications; and
(b) has not notified the authority that the address is withdrawn for that purpose,
a fixed penalty notice shall be given by sending it using electronic communications to that person at that address, in accordance with the condition set out in paragraph (3).
(2) In any other case, a fixed penalty notice shall be given by delivering it to the person to whom it is to be given, or by leaving it at the person's proper address or by sending it by first class post to the person at that address, or in any other manner agreed with the person to whom it is to be given.
(3) The condition mentioned in paragraph (1) is that the fixed penalty notice shall be-
(i) capable of being accessed by the person mentioned in that paragraph;
(ii) legible in all material respects; and
(iii) in a form sufficiently permanent to be used for subsequent reference,
and for this purpose "legible in all material respects" means that the information contained in the fixed penalty notice is available to that person to no lesser extent than it would be if given by means of a fixed penalty notice in printed form.
(4) Subject to section 157(2) of the 1991 Act, where an electronic communication is used for the purpose of giving a fixed penalty notice, then, unless the contrary is proved, the notice shall be deemed to be given at the time of day recorded by the transmitting apparatus as being the time of satisfactory completion of the transmission.
(5) For the purposes of paragraph (2), the proper address of any person to whom a fixed penalty notice is to be given shall be, where such person has furnished to the road works authority giving the notice a postal address for service of fixed penalty notices, that address, and otherwise, in the case of a corporation, the registered or principal office of the corporation, or, in any other case, the last known address of such person.
Time limit for giving fixed penalty notice
6. A fixed penalty notice for an offence may not be given more than 60 days after the time of commission of the offence beginning with the day on which the offence is committed.
Amount of penalty
7. -(1) Subject to paragraph (2), where a fixed penalty notice has been given in relation to an offence set out in column 2 of the Table in Schedule 2 to these Regulations and briefly described in column 3 of that Table, the penalty for that offence shall be the amount set out in column 4.
(2) Where, in relation to such an offence, payment is made before the end of the period specified in paragraph 5(1) of Schedule 6B to the 1991 Act, or if the last day of that period does not fall on a working day, before the end of the next working day in accordance with paragraph 5(3) of that Schedule, the penalty shall instead be the amount set out in column 5.
Modification of payment periods
8. -(1) Schedule 6B to the 1991 Act shall be modified as follows.
(2) In paragraph 4(2) for "29" there shall be substituted "36".
(3) In paragraph 5(1) for "15" there shall be substituted "29".
Form of notice withdrawing a fixed penalty notice
9. Where a notice withdrawing a fixed penalty notice is given in accordance with paragraph 8(1) of Schedule 6B to the 1991 Act, it shall be in the form set out in Schedule 3.
Retention of fixed penalties
10. The road works authority may retain as much of the money received by them by way of fixed penalties under Schedule 6B to the 1991 Act as is sufficient to meet the reasonable costs of operating the scheme under which they are paid.
Accounts in relation to fixed penalties
11. -(1) The road works authority shall keep a separate account of all monies received by them by way of fixed penalties.
(2) The road works authority shall prepare annual statements of account including the following information relating to the accounting period in question-
(a) the total number of fixed penalty notices issued by them and within that total-
(i) the number of penalties paid at the discounted amount;
(ii) the number of penalties paid at the prescribed penalty amount; and
(iii) the number of penalties remaining unpaid;
(b) the total amount of money received by them by way of fixed penalties;
(c) of the amount described in sub-paragraph (b), the amount of money retained by them under regulation 10 together with audited evidence of the reasonable costs described in that regulation; and
(d) of the amount described in sub-paragraph (b), the amount of money remitted to the Scottish Ministers under paragraph 12(1) of Schedule 6B to the 1991 Act.
(3) The road works authority shall publish and give copies of their annual statement of accounts to the Scottish Ministers and the Commissioner by 30 June each year and shall make copies available for public inspection at its principal office during its normal opening hours.
Methods of payment of fixed penalties
12. The methods by which fixed penalties may be paid are-
(a) electronically, using the Bankers Automated Clearing Services ( BACS);
(b) on-line at the road works authority's website, except that the road works authority does not have to make this method of payment available unless it has such a facility for accepting other types of payments due to them;
(c) by post, by sending a cheque to an address specified by the road works authority;
(d) in person at such premises and during such times as may be specified by the road works authority by means of cash, cheque, debit or credit card, except that the road works authority does not have to accept any particular debit or credit card unless it has facilities for accepting such cards for other types of payment due to them; and
(e) by telephone to such numbers and during such times as may be specified by the road works authority by means of debit or credit card, except that the road works authority does not have to accept any particular debit or credit card unless it has facilities for accepting such cards for other types of payments due to them.
A member of the Scottish Executive
St Andrew's House,
Edinburgh
2007
SCHEDULE 1 Regulation 4
FORM OF FIXED PENALTY NOTICE
SCHEDULE 2 Regulation 7
AMOUNT OF PENALTY
TABLE
(1) Item No. | (2) Offence under the 1991 Act | (3) Brief description | (4) Amount of penalty | (5) Discounted amount |
|---|
1. | An offence under s.113(1). | Failure to comply with duties under s.113 (advance notice of certain works, etc.) | £120 | £80 |
2. | An offence under s.114(5). | Beginning to execute works in contravention of s.114 (notice of starting date). |
3. | An offence under s.116(4). | Failure to give notice in accordance with s.116 (notice of emergency works). |
4. | An offence under s.129(6) consisting of a failure to comply with subsection (3) or (4) (a). | Failure to comply with requirements to give notice of completion of reinstatement. |
(a) Section 129(3) and (4) as amended by the Transport (Scotland) Act 2005 (asp 12), section 28(a) and (b).
SCHEDULE 3 Regulation 9
FORM OF NOTICE WITHDRAWING A FIXED PENALTY NOTICE
EXPLANATORY NOTE
(This note is not part of the Regulations)
Section 34 of, and Schedules 4 and 5 to, the Transport (Scotland) Act 2005, insert section 154A and Schedules 6A and 6B into the New Roads and Street Works Act 1991 ("the 1991 Act"). This provides for certain offences under Part 4 of the 1991 Act to become fixed penalty offences and enables regulations to be made in relation to them.
The Road Works (Fixed Penalty) (Scotland) Regulations 2007 make general provision as respects Scotland in relation to fixed penalties for certain offences under Part 4 of the 1991 Act.
Regulation 2 defines terms used in these Regulations.
Regulation 3 effectively prevents road managers from giving fixed penalty notices in relation to a road for which is they are the road works authority.
Regulation 4 and Schedule 1 prescribe the form of a fixed penalty notice.
Regulation 5 sets out the manner of service of a fixed penalty notice.
Regulation 6 specifies that a fixed penalty notice may not be given more than 60 days from and including the day on which the offence is committed.
Regulation 7 and Schedule 2 set out details of the fixed penalty offences and prescribe that in relation to each offence the penalty shall be £120 unless the sum of £80 is paid before the end of the period for payment of the discounted amount.
Regulation 8 modifies Schedule 6B to the 1991 Act by substituting the period of 36 days for the period of 29 days, being the period for payment of a fixed penalty, and by substituting the period of 29 days for the period of 15 days, being the period for payment of a discounted amount instead of the full penalty.
Regulation 9 and Schedule 3 prescribe the form of a notice withdrawing a fixed penalty notice.
Regulation 10 enables a road works authority to retain the reasonable costs of running the scheme from the fixed penalties received.
Regulation 11 makes provision in relation to the keeping of accounts and the preparation and publication of annual statements of accounts by road works authorities in relation to fixed penalties.
Regulation 12 prescribes the methods by which fixed penalties may be paid.
A regulatory impact assessment has been prepared in respect of these Regulations and a copy of it has been placed [ ]. Further copies can be obtained from [ ]. A copy has also been published on the Scottish Executive web site at www.scotland. gov.uk
Footnotes
()(a) 1991 c.22. Section 154A and Schedules 6A and 6B were inserted by the Transport (Scotland) Act 2005 (asp 12), section 34 and Schedules 4 and 5. The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c. 46).
()(b) Section 163A was inserted by section 39 of the Transport (Scotland) Act 2005.
()(c) 2000 c.7. Section 15(1) was amended by the Communications Act 2003 (c.21), section 406(1) and Schedule 17, paragraph 158.
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