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ROAD USER CHARGING (OR CONGESTION CHARGING) CONSULTATION

Scottish Statutory Instruments

2004 No.
TRANSPORT

The Road User Charging (Penalty Charges) (Scotland) Regulations 2004

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

1.  These Regulations may be cited as the Road User Charging (Penalty Charges) (Scotland) Regulations 2004 and shall come into force on           2004.

Interpretation

2. –(1) In these Regulations—

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

"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;

"the charging area" means, all roads in respect of which the charging authority, or either (or any) of the charging authorities, are the local traffic authority or such part thereof as may be specified in a charging scheme;

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

(a) if the vehicle has, in accordance with regulation 9 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(8) of the Road Traffic Offenders Act 1988(b);

"immobilisation device" has the same meaning as in section 104(9) of the Road Traffic Regulation Act 1984(c);

"outstanding" in relation to a penalty charge shall be construed in accordance with regulation 8(2);

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

"the Liability for Charges Regulations 2004" means the Road User Charging (Liability for Charges) (Scotland) Regulations 2004;

"the Registration and Licensing Regulations 2002" means the Road Vehicles (Registration and Licensing) Regulations 2002(d);

"vehicle" means motor vehicle; and

"vehicle-hire firm" has the same meaning as in section 66(8) 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(e).

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 any or all of—

(a) the release of a vehicle from an immobilisation device fitted to it in accordance with regulation 8;

(b) the removal of a vehicle in accordance with regulation 9;

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

(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 penalty charges

4. –(1) In this regulation—

"penalty charges" means those charges imposed pursuant to paragraph (1) of regulation 3 or paragraphs (1)(a) of each of regulation 7 and regulation 9.

(2) Penalty charges shall be payable by the registered keeper or those other persons liable to pay charges in terms of Regulations 3 and 4 of the Liability for Charges Regulations 2004.

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 the vehicle, 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. A vehicle so moved may be driven, towed or otherwise moved 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 moving.

(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 fitted 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 outstanding 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 by or under the direction of an authorised person—

(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;

(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 to an adjudicator 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 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;

(b) there are such number of 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 fitted to the vehicle in accordance with regulation 7 and the outstanding penalty charges have not been paid in accordance with regulation 8,

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 custodian.

(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, as mentioned in regulation 9(2), to dispose of the vehicle by selling it or dealing with it as scrap, as the custodian 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 to the custodian, in accordance with regulation 9(2), the custodian may recover (without prejudicing the charging authority's rights to recover such amounts in full from those persons liable, pursuant to regulation 4) from the person who was the registered keeper of the vehicle when the vehicle was removed the penalty charges prescribed by the scheme for—

(a) its removal in accordance with regulation 9;

(b) its storage and release from storage; and

(c) if the vehicle has been disposed of, its sale or destruction.

(2) Where, by virtue of paragraphs (1)(a) and (b), any sum is recoverable in respect of a vehicle, 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 10, 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 registered keeper of the vehicle or authorised by the registered keeper 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 or the storage and release from storage of the vehicle are paid.

(3) On giving the claimant possession of a vehicle pursuant to this regulation, the custodian shall give the claimant a statement of the right of the registered keeper (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(1) 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.

A member of the Scottish Executive
St Andrew’s House,
Edinburgh

                                     2004

EXPLANATORY NOTE
(This note is not part of the Regulations)

These Regulations deal with the procedures relating to the imposition of penalty charges for road user charging schemes, under sections 55 and 56 of the Transport (Scotland) Act 2001. The Regulations cover requirements about the imposition and liability for penalty charges, examination of, and entry to vehicles, powers of immobilisation, removal and disposal of vehicles, recovery of penalty charges in relation to removed vehicles, taking possession of vehicles and claims by owners of vehicles after their disposal.

EXECUTIVE NOTE

The Road User Charging (Penalty Charges) (Scotland) Regulations 2004 (S.S.I. 2004/****)

The above instrument was made in exercise of the powers conferred by section 55(1) and (2), 56(1), (2) and (4) and 81(2) of the Transport (Scotland) Act 2001(a). The instrument is subject to negative resolution procedure.

Policy Objectives

The Scottish Executive report "Scotland’s transport future — the transport white paper" was published in June 2004 and set out the vision for Scotland’s transport future. The challenge is to transform Scotland’s transport making it more reliable, accessible and customer friendly. It must deliver high quality services to passengers and business. The importance of transport is increasing. In Scotland’s transport future we set out our proposals.

Increasing traffic levels are causing environmental problems, congestion, delays and unpredictable journeys. Even where good alternatives exist, too few people are leaving their cars at home. Doing nothing will simply cause problems for future generations. Road user charging is a critical part of demand management, associated with driving on a particular road at a particular time. It acknowledges that road space is a scarce resource to be shared fairly. It can tackle congestion, raise transport revenues for infrastructure and address environmental impacts.

The legislation for charging schemes is enabling legislation. It sets out the statutory framework for road user charging schemes. This enables a local authority to introduce a charging scheme on roads for which it has responsibility.

This set of regulations deals with the procedures relating to imposition and liability for penalty charges; examination of, and entry to vehicles; powers of immobilisation, removal and disposal of vehicles; recovery of penalty charges in relation to removed vehicles; taking possession of vehicles; and claims by owners of vehicles after their disposal.

Financial Effects

The instrument has no financial effects on the Scottish Executive or Local Government.

Regulatory Impact Assessment

There has been no Regulatory Impact Assessment (RIA) undertaken in respect of the regulations. The making of the regulations in themselves will have no impact upon Scottish businesses. The regulations merely set out the framework within which a local authority that wishes to implement a charging scheme must operate. It is up to individual local authorities whether or not they wish to implement such a scheme.

ETLLD Transport 1:2
April 2004

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