Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Transport (Scotland) Act 2019

Type Act of the Scottish Parliament

Publication 2019-11-15

Last updated 2024-12-26

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(g) arrangements for the periodic review of the operation and effectiveness of the scheme including, in particular, how the outcome of a review is to be communicated to persons affected by it.

(3) A workplace parking licensing scheme may make different provision for different purposes or different areas within the licensing area.

Workplace parking places

71

(1) For the purposes of this Part, a workplace parking place is provided at any premises at any time if a parking place provided at the premises is at that time occupied by a motor vehicle used—

(a) by a relevant person,

(b) by a worker, agent, supplier, business customer or business visitor of a relevant person,

(d) where a body whose affairs are controlled by its members is a relevant person, by a member of the body engaged in the carrying on of any business of the body,

for the purpose of attending a place at which the relevant person carries on business at, or in the vicinity of, the premises.

(2) In this section “relevant person” means—

(a) the person who provides the parking place in question (“the provider”),

(b) any person with whom the provider has entered into arrangements to provide the parking place (whether or not for that person's own use), or

(i) the provider, or

(ii) a person within paragraph (b).

(3) For the purpose of subsection (2)(c), any two persons are associated if—

(a) one is a company of which the other (directly or indirectly) has control, or

(b) both are companies of which a third person (directly or indirectly) has control.

(4) For the purposes of this section—

“business” includes—any trade, profession, vocation or undertaking,the functions of any holder of a public office,the provision of any course of education or training, andthe functions of, or any activities carried on by, the Scottish Administration, a Government department, a local authority or other statutory body,

“business customer”, in relation to a relevant person, means a client or customer of the relevant person who is attending at any premises occupied by the relevant person for the purposes of a business carried on by that client or customer,

“business visitor”, in relation to a relevant person, means an individual who—in the course of the individual's employment, orin the course of carrying on a business or for the purposes of a business carried on by the individual,is visiting the relevant person or any premises occupied by the relevant person,

“Government department” means a department of the Government of the United Kingdom,

“supplier”, in relation to a relevant person, means—a person supplying, or seeking to supply, goods or services to the relevant person for the purposes of a business carried on by the relevant person, orany agent or sub-contractor of such a person,

“worker” means an individual who has entered into, or works under—a contract of employment, orany other contract, whether express or implied and (if it is express) whether oral or in writing, under which the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.

(5) The Scottish Ministers may by regulations amend subsections (1) to (4) for the purpose of adding, removing or varying circumstances in which, for the purposes of this Part, a workplace parking place is provided.

Making and modifying schemes

Power to make and modify schemes

72

(1) A local authority may (in accordance with this Part)—

(a) make a workplace parking licensing scheme for all or part of its area,

(b) amend or revoke a workplace parking licensing scheme made by it.

(2) A workplace parking licensing scheme may be made only if—

(a) the local authority proposing to make the scheme has a local transport strategy, and

(b) it appears to the authority that the scheme will (directly or indirectly) facilitate the achievement of policies in its strategy.

(3) Two or more local authorities may act jointly to make a workplace parking licensing scheme.

(4) In those circumstances—

(a) they must continue to act jointly in relation to the scheme in all respects, and

(b) unless the context otherwise requires, a reference in this Part to—

(i) a local authority, in relation to a workplace parking licensing scheme or to a proposed scheme, is a reference to the authorities acting jointly,

(ii) the area of a local authority is a reference to the combined areas of those authorities, and

(iii) the local transport strategy of a local authority is a reference to the local transport strategy of each local authority.

Prior consultation and impact assessment

73

(1) Before making, amending or revoking a workplace parking licensing scheme, a local authority must—

(a) prepare and publish—

(i) an outline of the proposed scheme, the scheme as it is proposed to be amended or (as the case may be) notice of the proposed revocation of the scheme (“the proposal”),

(ii) a statement about the objectives of the proposal, and

(iii) an assessment of the impacts of the proposal,

(b) consult such persons as the authority considers appropriate in relation to the proposal (including, in particular, persons that the authority has identified as likely to be affected by the proposal), and

(i) summarises the consultation responses received,

(ii) states whether or not the authority intends to proceed with the proposal (or the proposal as modified in light of the consultation), and

(iii) sets out the authority's reasons for whether or not it intends to proceed.

(2) For the purpose of subsection (1)(a)(i), an outline of the proposed scheme must include the proposed—

(a) licensing area,

(b) period during which the scheme is to remain in force (or that it is to continue indefinitely),

(d) persons, premises or motor vehicles (or descriptions of such persons, premises or motor vehicles) that are to be exempt from the scheme or from paying charges under it (see sections 78 and 79).

(3) For the purpose of subsection (1)(a)(ii), the statement must set out—

(a) the objectives that the local authority intends the proposal to achieve,

(b) its assessment of how (or the extent to which) the proposal will—

(i) achieve those objectives, and

(ii) facilitate (directly or indirectly) the achievement of policies in its local transport strategy, and

(4) For the purpose of subsection (1)(a)(iii), the assessment must, in particular, set out what the local authority considers to be the likely effects of the proposal on—

(a) persons who may have to pay charges under (or as a result of) the scheme, and

(b) the environment.

(5) A local authority may not make, amend or (as the case may be) revoke the scheme in accordance with the proposal (or the proposal as modified) until a period of 8 weeks beginning with the date on which it published its report under subsection (1)(c) has elapsed.

Scottish Ministers’ power to regulate process

74

The Scottish Ministers may by regulations, following consultation with such persons as they consider appropriate, make provision about the procedures in relation to making, amending and revoking workplace parking licensing schemes including, in particular, provision—

(a) specifying the form of a scheme, or any amendment or revocation of it,

(b) about consultation on proposals (including the publication of proposals and the making and consideration of representations),

(d) about reviews of, and appeals against, decisions in relation to schemes.

Examination of proposals

75

(1) This section applies where a local authority proposes to make, amend or revoke a workplace parking licensing scheme.

(2) Either—

(a) the local authority making the proposal, or

(b) the Scottish Ministers,

may (if it or they consider it appropriate) appoint a person (“the reporter”) to carry out an examination of, and prepare a report on, the proposal or any aspect of it.

(3) The reporter may carry out an examination in such manner as the reporter considers appropriate and may, in particular, do so by means of—

(a) consideration of written representations only,

(b) conducting a hearing at which a person who has made representations in respect of the proposal may be given an opportunity to appear and be heard, or

(4) Subsections (3) to (5) of section 210 of the Local Government (Scotland) Act 1973 (provisions relating to local inquiries) apply in relation to a hearing or inquiry under subsection (3) of this section as they apply in relation to an inquiry under that Act.

(5) Where an examination is to be carried out, the local authority may not proceed with the proposal until the examination has been completed.

(6) The Scottish Ministers may by regulations make further provision in relation to examinations to be carried out under this section.

(7) Without limit to that generality, such regulations may make provision—

(a) about who may be appointed to carry out an examination under this section,

(b) about the procedure for examinations under this section and, in particular, in relation to—

(i) any representations which are (or are not) to be taken into account,

(ii) who may appear at a hearing or inquiry,

(iii) the procedure for the conduct of any hearing or inquiry,

(iv) things which must be done in preparation for, or following, a hearing or inquiry,

(c) in relation to the financial aspects of an examination and, in particular, about the payment of remuneration, costs and expenses,

(d) in relation to the report to be prepared including, in particular, its form, content and publication.

Workplace parking licences

Licence applications and processes

76

(1) A workplace parking licensing scheme may include provision for or in connection with—

(a) applications for a workplace parking licence,

(b) granting, issuing and renewing a licence,

(d) the standard duration of a licence,

(e) varying or revoking a licence,

(f) suspending the requirement to hold a licence for a period (and reimbursing charges for such a period).

(2) Provision under subsection (1)(b) may include the granting of short-term workplace parking licences in special circumstances specified in, or determined in accordance with, the scheme.

(3) In connection with the granting of a short-term workplace parking licence, a workplace parking licensing scheme may include provision conferring a discretion on any person.

(4) The duration of a short-term workplace parking licence (or the total duration of a series of such licences) may not exceed 12 months.

(5) The Scottish Ministers may by regulations, following consultation with such persons as they consider appropriate, make, or require or permit workplace parking schemes to include, provision about reviews of, and appeals against, decisions in relation to workplace parking licences.

(6) A person commits an offence if the person intentionally provides false or misleading information in or in connection with an application in respect of a workplace parking licence.

(7) A person guilty of an offence under subsection (6) is liable on—

(a) summary conviction, to a fine not exceeding the statutory maximum, or

(b) conviction on indictment, to a fine.

Content of licences

77

(1) A workplace parking licence must—

(a) state the name of the person to whom it is granted,

(b) specify the duration of the licence,

(d) specify the maximum number of motor vehicles which may be parked at those premises at any one time, and

(e) state the amount of the charge paid on the licence and set out the calculation of that amount.

(2) A workplace parking licence may include such other information in relation to the workplace parking licensing scheme or licensing processes as the local authority considers appropriate.

Exemptions

Exemptions etc.

78

(1) A workplace parking licensing scheme must provide for the exemptions described in section 79.

(2) A workplace parking licensing scheme may otherwise provide for—

(a) specific premises, or premises of a specified description,

(b) premises with a specified number of parking places (or fewer), or

(c) descriptions of persons or motor vehicles (including descriptions by reference to any parking places provided for the exclusive use of such persons or motor vehicles),

to be exempt from the scheme or from paying charges under the scheme.

(3) The same premises must not be subject to more than one workplace parking licensing scheme at the same time.

(4) The Scottish Ministers may by regulations, following consultation with such persons as they consider appropriate, make further provision in relation to exemptions, including by—

(a) exempting from workplace parking licensing schemes (or requiring schemes to exempt) such premises, persons or vehicles (or descriptions of premises, persons or vehicles) as may be specified in the regulations, and

(b) prohibiting the exemption from schemes of premises, persons or vehicles of such descriptions as may be specified in the regulations.

National exemptions

79

(1) The following workplace parking places are to be exempt from charges under a workplace parking licensing scheme—

(a) places for the exclusive use of persons using motor vehicles displaying a badge issued—

(i) under section 21 of the Chronically Sick and Disabled Persons Act 1970,

(ii) under a provision of the law of Northern Ireland corresponding to that section, or

(iii) by a member state of the EU for purposes corresponding to the purposes of that section,

(b) subject to subsection (2)(b), places at qualifying NHS premises, and

(2) A workplace parking licensing scheme may—

(a) require premises with workplace parking places mentioned in subsection (1) to hold a workplace parking licence in respect of the places, and

(b) specify that workplace parking places at qualifying NHS premises that are provided for persons who do not provide services for the health service within the meaning of section 108(1) of the National Health Service (Scotland) Act 1978 (“the 1978 Act”) are not to be exempt from charges under a workplace parking licensing scheme.

(3) In this section, “qualifying NHS premises” means—

(a) a health service hospital within the meaning of section 108(1) of the 1978 Act or a state hospital within the meaning of section 102(2) of that Act,

(b) any other premises occupied by a Health Board or Special Health Board constituted under section 2(1) of the 1978 Act,

(c) premises that are (or such part of premises as is) used wholly or mainly for the provision of primary medical services as construed in accordance with section 2C(5) of the 1978 Act, and

(d) such other similar premises as the Scottish Ministers may specify under section 78(4).

Financial provisions

Charges

80

(1) The charges imposed in respect of any premises by a workplace parking licensing scheme must be paid—

(a) by the occupier of the premises, or

(b) in such circumstances as the Scottish Ministers may by regulations, following consultation with such persons as they consider appropriate, specify, by such other person as may be specified.

(2) The charges that may be imposed by a workplace parking licensing scheme may include different charges (or no charge) for different cases, including (in particular)—

(a) different days,

(b) different times of day,

(d) different descriptions of persons,

(e) different descriptions of premises, including different numbers of workplace parking places provided at a licensed premises, and

(f) different classes of motor vehicles.

(3) In setting the charges imposed by a workplace parking licensing scheme, a local authority must have regard to the purposes for which the authority is to apply any of the net proceeds of the scheme (see section 81).

Application of net proceeds of workplace parking licensing schemes

81

(1) A local authority (the authority) may apply the net proceeds of a workplace parking licensing scheme (or, in a case where the authority is acting jointly with another local authority or authorities, the authority's share of the net proceeds) only for purposes of facilitating the achievement of—

(a) policies in the authority's local transport strategy, or

(b) in the case of a joint scheme, the policies in the local transport strategy of a local authority with whom the authority is acting jointly.

(2) Before applying any share of net proceeds under subsection (1)(b), the authority must be satisfied that doing so will benefit some part of its area.

(3) In this Part, “net proceeds” means the amount of money (if any) by which the gross amount received under the workplace parking licensing scheme for a financial year exceeds the expenses of operating the scheme for the financial year.

Accounts

82

(1) The Scottish Ministers may by regulations make provision for or about the keeping of accounts by local authorities in connection with the exercise of functions under this Part.

(2) Regulations under subsection (1) may, in particular—

(a) specify the form and content of accounts,

(b) require the publication of accounts, and specify the manner in which they must be published,

(c) make provision for how accounts are to be prepared and kept where two or more authorities are acting jointly in respect of a workplace parking licensing scheme.

Enforcement

Penalty charges

83

(1) The Scottish Ministers may by regulations, following consultation with such persons as they consider appropriate, make provision for or in connection with—

(a) the imposition of charges (“penalty charges”) in respect of acts, omissions, events or circumstances relating to, or connected with, workplace parking licensing schemes, and

(b) the notification, payment, adjudication and enforcement of penalty charges.

(2) Penalty charges in respect of any premises must be paid by—

(a) the occupier of the premises, or

(b) in such circumstances as may be specified, such other person as may be specified.

(3) Without limit to the generality of subsection (1), regulations made under it—

(a) may make, or may permit or require workplace parking licensing schemes to include, provision—

(i) about the imposition of penalty charges in specified circumstances,

(ii) about the timing and manner of payment of penalty charges,

(iii) specifying the amount of penalty charges, including any reduced penalty charges or increased penalty charges and the circumstances in which such reduced or increased penalty charges are payable,

(iv) about reviews of, and appeals against, decisions in relation to penalty charges,

(v) about the cancellation of penalty charges,

(b) may make provision—

(i) requiring local authorities to serve a notice of a penalty charge on any person it believes to be liable to pay such a charge,

(ii) about the form and content of such a notice,

(iii) about the way that compliance with such a notice may be enforced.

(4) In this section “specified” means specified in regulations made under subsection (1).

Evidence from approved devices

84

The Scottish Ministers may by regulations make provision for or in connection with permitting evidence of a fact relevant to proceedings for an offence under this Part, or proceedings in respect of a failure to comply with the provisions of a workplace parking licensing scheme, to be given by production of—

(a) a record produced by a device specified in, or approved in accordance with, the regulations, and

(b) a certificate (whether in the same or another document) as to the circumstances in which the record was produced authenticated in a manner specified in the regulations.

Enforcement powers

85

(1) An authorised person may—

(a) enter any premises in the licensing area of a workplace parking licensing scheme (other than any premises that is used as a dwelling),

(b) require the production of information relating to the requirement to hold a licence under a scheme, and specify the form in which the information is to be produced,

(c) take copies of, or take possession of, information (in whatever form) which relates to the requirement to hold a licence under a scheme and retain if for as long as the authorised person considers necessary.

(2) The powers in subsection (1) may be exercised only for the purposes of—

(a) establishing if workplace parking places are being provided at the premises either—

(i) without a licence, or

(ii) without a licence in respect of all of the places being provided,

(b) establishing if there is, or has been, any contravention of the conditions of a licence in respect of the premises,

(3) In this section and sections 86 and 87, “authorised person” means a person who is authorised by a local authority to exercise functions under this section in respect of a workplace parking licensing scheme made by it.

Enforcement powers: warrants

86

(1) This section applies to the powers conferred by section 85(1).

(2) A sheriff may grant a warrant under this subsection only if the sheriff is satisfied, by evidence on oath—

(a) that there are reasonable grounds for entering premises for a purpose specified in section 85(2), and

(b) that—

(i) entry to the premises has been refused,

(ii) such a refusal is reasonably expected,

(iii) the premises are unoccupied, or

(iv) the occupier is temporarily absent.

(3) A warrant authorises an authorised person—

(a) to enter the premises,

(b) to exercise any other power conferred by section 85(1), and

(4) A warrant expires—

(a) 28 days after the day on which the warrant was granted, or

(b) if earlier, when any period as is specified in it for the purpose for which it was granted expires.

Enforcement powers: further provision

87

(1) This section applies to the powers conferred by section 85(1) (whether exercised by virtue of that section or under a warrant granted under section 86).

(2) The power of entry may be exercised only at a reasonable time of day.

(3) An authorised person seeking to exercise a power must, on request, produce evidence of the person's identity and authorisation before exercising the power.

(4) An authorised person may take on to the premises such other persons, and such materials and equipment, as the authorised person considers necessary.

(5) If an authorised person enters the premises by virtue of a warrant, the authorised person must, if taking possession of anything under section 85(1)(c), leave a statement on the premises giving particulars of what has been taken and by whom.

(6) On leaving any premises which an authorised person is authorised to enter under a warrant, the person must, if the premises are unoccupied or the occupier is temporarily absent, leave the premises as effectively secured against entry as the person found them.

(7) A person commits an offence if the person—

(a) without reasonable excuse, fails to comply with a requirement of an authorised person, or

(b) intentionally obstructs an authorised person in the exercise of a power conferred by section 85(1).

(8) A person who commits an offence under subsection (7) is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum, and

(b) on conviction on indictment, to a fine.

Power of entry: Crown land

88

(1) The power of entry conferred under section 85(1)(a) is exercisable in relation to Crown land specified in column 1 of the following table only with the consent of the person specified in the corresponding entry in column 2 of the table (the “appropriate authority”).

Crown land	Appropriate authority
Land an interest in which belongs to Her Majesty in right of the Crown and which forms part of the Crown Estate (that is, the property, rights and interests under the management of the Crown Estate Commissioners)	The Crown Estate Commissioners
Land an interest in which belongs to Her Majesty in right of the Crown and which forms part of the Scottish Crown Estate	The person managing the land
Land an interest in which belongs to Her Majesty in right of the Crown other than land forming part of the Crown Estate or the Scottish Crown Estate	The office-holder in the Scottish Administration or, as the case may be, the Government department managing the land
Land an interest in which belongs to Her Majesty in right of Her private estates	The person appointed by Her Majesty in writing under the Royal Sign Manual or, if no such appointment is made, the Scottish Ministers
Land an interest in which belongs to an office-holder in the Scottish Administration	The office-holder in the Scottish Administration
Land an interest in which belongs to a Government department	The Government department
Land an interest in which is held in trust for Her Majesty by an office-holder in the Scottish Administration for the purposes of the Scottish Administration	The office-holder in the Scottish Administration
Land an interest in which is held in trust for Her Majesty for the purposes of a Government department	The Government department

(2) In subsection (1)—

(a) the reference to Her Majesty's private estates is to be construed in accordance with section 1 of the Crown Private Estates Act 1862,

(b) “Government department” means a department of the Government of the United Kingdom,

(c) “Scottish Crown Estate” means the property, rights and interests to which section 90B(5) of the Scotland Act 1998 applies.

(3) It is for the Scottish Ministers to determine any question that arises as to who in accordance with subsection (1) is the appropriate authority in relation to any land, and their decision is final.

Interpretation of Part

89

In this Part—

“licence” means a licence under a workplace parking licensing scheme,

“licensing area” is to be construed in accordance with section 70(2),

“local transport strategy”, in relation to a local authority, means a strategy prepared by a local transport authority or a local traffic authority, that relates to transport in the local authority's area,

“motor vehicle” means a motor vehicle within the meaning of section 185(1) of the Road Traffic Act 1988, except that section 189 of that Act (exception for certain pedestrian controlled vehicles and electrically assisted pedal cycles) applies as it applies for the purposes of that Act,

“net proceeds” has the meaning given in section 81,

“penalty charge” is to be construed in accordance with section 83(1),

“workplace parking licensing scheme” is to be construed in accordance with section 70(1),

“workplace parking place” is to be construed in accordance with section 71.

PART 8 — Recovery of unpaid parking charges

Application

Application of Part

90

(1) This Part applies where—

(a) the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land, and

(b) those charges have not been paid in full.

(2) It is immaterial for the purposes of this Part whether or not the vehicle was permitted to be parked (or to remain parked) on the land.

Key concepts

Meaning of “relevant obligation”

91

In this Part, “relevant obligation” means—

(a) an obligation arising under the terms of a relevant contract, or

(b) an obligation arising, in circumstances in which there is no relevant contract, as a result of a trespass or other delict committed by parking the vehicle on the relevant land.

Meaning of “parking charge”

92

(1) In this Part, “parking charge” means—

(a) in the case of a relevant obligation arising under the terms of a relevant contract, a sum in the nature of a fee or charge,

(b) in the case of a relevant obligation arising as a result of a trespass or other delict, a sum in the nature of damages,

however the sum in question is described.

(2) The reference to a sum in the nature of damages is to a sum of which adequate notice was given to drivers of vehicles (when the vehicle was parked on the relevant land).

(3) For the purposes of subsection (2), “adequate notice” means notice given by—

(a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under section 103 for, or for purposes including, the purposes of subsection (2), or

(b) where no such requirements apply, the display of one or more notices which—

(i) specify the sum as the charge for unauthorised parking, and

(ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.

Meaning of “relevant contract”

93

In this Part, “relevant contract” means a contract (including a contract arising only when the vehicle was parked on the relevant land) between the driver and a person who is—

(a) the owner or occupier of the land, or

(b) authorised, under or by virtue of arrangements made by the owner or occupier of the land, to enter into a contract with the driver requiring the payment of parking charges in respect of the parking of the vehicle on the land.

Meaning of “relevant land”

94

(1) In this Part, “relevant land” means any land (including land above or below ground level) other than—

(a) a public road within the meaning of section 151(1) of the Roads (Scotland) Act 1984,

(b) a parking place which is provided or controlled by the Secretary of State, the Scottish Ministers or a local authority,

(c) any land, not falling within paragraph (a) or (b), on which the parking of a vehicle is subject to statutory control.

(2) In subsection (1)(b), “parking place” has the meaning given by section 32(4)(b) of the Road Traffic Regulation Act 1984.

(3) For the purposes of subsection (1)(c), the parking of a vehicle on land is “subject to statutory control” if any enactment imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question.

Right to recover unpaid charges from keeper of vehicle

Right in certain circumstances to recover from keeper of vehicle

95

(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.

(2) The right under this section applies only if—

(a) the conditions specified in sections 96, 97, 102 and 103 (so far as applicable) are met, and

(b) the vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.

(3) For the purposes of the condition in subsection (2)(b), the vehicle is to be presumed not to be a stolen vehicle at the material time, unless the contrary is proved.

(4) The right under this section may only be exercised after the end of the period of 28 days beginning with the day on which the notice to keeper is given.

(5) The Scottish Ministers may by regulations prescribe a description of an amount as the maximum that may be recovered from a keeper by virtue of the right conferred by this section.

(6) Nothing in this section affects any other remedy the creditor may have against the keeper of the vehicle or any other person in respect of any unpaid parking charges (but this is not to be read as permitting double recovery).

(7) The right under this section is subject to section 104 (which provides for the right not to apply in certain circumstances in the case of a hire vehicle).

First condition: lack of knowledge of driver’s name and address

96

(1) The first condition for the purposes of section 95 is that the creditor—

(a) has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges, but

(b) is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and an address at which the driver for the time being resides or can conveniently be contacted.

(2) Subsection (1)(b) ceases to apply if, at any time after the end of the period of 28 days beginning with the day on which the notice to keeper is given, the creditor begins proceedings to recover the unpaid parking charges from the keeper.

Second condition: giving of notices to driver and keeper

97

(1) The second condition for the purposes of section 95 is that the creditor (or a person acting for or on behalf of the creditor)—

(a) has given a notice to driver in accordance with section 98, followed by a notice to keeper in accordance with section 99, or

(b) has given a notice to keeper in accordance with section 100.

(2) If a notice to driver has been given, any subsequent notice to keeper must be given in accordance with section 99.

Giving of notice to driver

98

(1) A notice which is to be relied on as a notice to driver for the purposes of section 97(1)(a) is given in accordance with this section if the following requirements are met.

(2) The notice contains such information as the Scottish Ministers may by regulations prescribe.

(3) The notice relates only to a single period of parking (but this does not prevent the giving of separate notices each specifying different parts of a single period of parking).

(4) The notice is given—

(a) before the vehicle is removed from the relevant land after the end of the period of parking to which the notice relates, and

(b) while the vehicle is stationary,

by affixing it to the vehicle or by handing it to the person appearing to be in charge of the vehicle.

Giving of notice to keeper following giving notice to driver

99

(1) A notice which is to be relied on as a notice to keeper for the purposes of section 97(1)(a) is given in accordance with this section if the following requirements are met.

(2) The notice contains such information as the Scottish Ministers may by regulations prescribe.

(3) The notice relates only to a single period of parking (but this does not prevent the giving of separate notices each specifying different parts of a single period of parking).

(4) The notice is given to the keeper, by such means as the Scottish Ministers may by regulations prescribe, within the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.

(5) When it is given, the notice is accompanied by any evidence prescribed under section 101.

Giving of notice to keeper without giving notice to driver

100

(1) A notice which is to be relied on as a notice to keeper for the purposes of section 97(1)(b) is given in accordance with this section if the following requirements are met.

(2) The notice contains such information as the Scottish Ministers may by regulations prescribe.

(3) The notice relates only to a single period of parking (but this does not prevent the giving of separate notices each specifying different parts of a single period of parking).

(4) The notice is given to the keeper, by such means as the Scottish Ministers may by regulations prescribe, within the period of 14 days beginning with the day after that on which the period of parking to which the notice relates ended.

(5) When it is given, the notice is accompanied by any evidence prescribed under section 101.

Notices to keeper: accompanying evidence

101

(1) The Scottish Ministers may by regulations prescribe evidence which must accompany a notice which is to be relied on as a notice to keeper for the purposes of section 97(1)(a) or section 97(1)(b) (as the case may be).

(2) The regulations may, in particular, make provision as to—

(a) the means by which any prescribed evidence is to be generated or otherwise produced (which may include a requirement to use equipment of a kind approved for the purpose by a person specified in the regulations), or

(b) the circumstances in which any evidence is, or is not, required to accompany a notice to keeper.

Third condition: keeper’s details obtained from Secretary of State

102

(1) The third condition for the purposes of section 95 is that—

(a) the creditor (or a person acting for or on behalf of the creditor) has made an application for the keeper's details in relation to the period of parking to which the unpaid parking charges relate,

(b) the application was made during the period mentioned in section 99(4) (where notice to the driver has been given) or 100(4) (where no notice to the driver has been given), and

(2) The third condition applies only if the vehicle is a registered vehicle.

(3) In subsection (1)(a), “application for the keeper's details” means an application for the following information to be provided to the applicant by virtue of regulations made under section 22(1)(c) of the Vehicle Excise and Registration Act 1994—

(a) the name of the registered keeper of the vehicle during the period of parking to which the unpaid parking charges relate, and

(b) the address of that person as it appears on the register (or, if that person has ceased to be the registered keeper, as it last appeared on the register).

Fourth condition: display of notices on relevant land

103

(1) The fourth condition for the purposes of section 95 is that any applicable requirements prescribed under this section were met as regards the relevant land at the beginning of the period of parking to which the unpaid parking charges relate.

(2) The Scottish Ministers may by regulations prescribe requirements as to the display of notices in relevant land where parking charges may be incurred in respect of the parking of vehicles on the land.

(3) The provision made under subsection (2) may, in particular, include provision—

(a) requiring notices of more than one kind to be displayed on relevant land,

(b) as to the content or form of any notices required to be displayed,

Hire vehicles

No right to recover from vehicle-hire firm

104

(1) This section applies in the case of parking charges incurred in respect of the parking of a vehicle on relevant land if—

(a) the vehicle was at the time of parking hired to any person under a hire agreement with a vehicle-hire firm, and

(b) the keeper has been given a notice to keeper within the period mentioned in section 99(4) or 100(4) (as the case may be).

(2) The creditor may not exercise the right under section 95 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given—

(a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement,

(b) a copy of the hire agreement, and

(3) The statement of liability required by subsection (2)(c) must—

(a) contain a statement by the hirer to the effect that the hirer acknowledges responsibility for any parking charges that may be incurred with respect to the vehicle while it is hired to the hirer,

(b) include an address given by the hirer (whether a residential, business or other address) as one at which documents may be given to the hirer,

(and it is immaterial whether the statement mentioned in paragraph (a) relates also to other charges or penalties of any kind).

(4) A statement required by subsection (2)(a) or (c) must be in such form as the Scottish Ministers may by regulations prescribe.

(5) The giving of documents referred to in subsection (2) must be by such means as the Scottish Ministers may by regulations prescribe.

(6) In this section—

(a) “hire agreement” means an agreement which—

(i) provides for a vehicle to be let to a person (“the hirer”) for a period of any duration (whether or not the period is capable of extension by agreement between the parties), and

(ii) is not a hire-purchase agreement within the meaning of the Consumer Credit Act 1974,

(b) any reference to the currency of a hire agreement includes a reference to any period during which, with the consent of the vehicle-hire firm, the hirer continues in possession of the vehicle as hirer, after the expiry of any period specified in the agreement but otherwise on terms and conditions specified in it, and

Right to recover from hirer

105

(1) If—

(a) the creditor is by virtue of section 104(2) unable to exercise the right to recover from the keeper any unpaid parking charges mentioned in the notice to keeper, and

(b) the conditions mentioned in subsection (2) are met,

the creditor may recover those charges (so far as they remain unpaid) from the hirer.

(2) The conditions are that—

(a) the creditor has within the relevant period given the hirer a notice in accordance with subsection (5) (a “notice to hirer”), together with a copy of the documents mentioned in section 104(2) and the notice to keeper,

(b) a period of 21 days beginning with the day on which the notice to hirer was given has elapsed, and

(c) the vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.

(3) In subsection (2)(a), “the relevant period” is the period of 21 days beginning with the day after that on which the documents required by section 104(2) are given to the creditor.

(4) For the purposes of subsection (2)(c) a vehicle is presumed not to be a stolen vehicle at the material time, unless the contrary is proved.

(5) The notice to hirer must contain such information as the Scottish Ministers may by regulations prescribe.

(6) The giving of documents referred to in subsection (2)(a) must be by such means as the Scottish Ministers may by regulations prescribe.

(7) In this section, “the hirer” means the person who is the hirer in relation to the vehicle as referred to in section 104.

Military vehicles

106

This Part does not apply in relation to a vehicle that—

(a) at the relevant time is used or appropriated for use for naval, military or air force purposes, or

(b) belongs to any visiting forces (within the meaning of the Visiting Forces Act 1952) or is at the relevant time used or appropriated for use by such forces.

General

Power to modify Part

107

(1) The Scottish Ministers may by regulations modify this Part for the purpose of—

(a) amending the definition of “relevant land” in section 94,

(b) adding to, removing or amending any of the conditions to which the right conferred by section 95 is for the time being subject.

(2) The power to modify this Part for the purpose mentioned in subsection (1)(b) includes, in particular, power to add to, remove or amend—

(a) any provisions that are applicable for the purposes of a condition, and

(b) any powers of the Scottish Ministers to prescribe anything for the purposes of a condition by regulations.

Interpretation of Part

108

In this Part—

“the creditor” means the person who is for the time being entitled to recover unpaid parking charges from the driver of the vehicle,

“driver” includes, where more than one person is engaged in the driving of the vehicle, any person so engaged,

“keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper,

“notice to driver” means a notice given in accordance with section 98,

“notice to keeper” means a notice given in accordance with section 99 or 100 (as the case may be),

“registered address” means, in relation to the keeper of a registered vehicle, the address described in section 102(3)(b) (as provided by the Secretary of State in response to the application for the keeper's details required by section 102),

“registered keeper”, in relation to a registered vehicle, means the person in whose name the vehicle is registered,

“registered vehicle” means a vehicle which is for the time being registered under the Vehicle Excise and Registration Act 1994,

“vehicle” means a mechanically-propelled vehicle or a vehicle designed or adapted for towing by a mechanically-propelled vehicle.

PART 9 — Road works

Scottish Road Works Commissioner: status and functions

Status of the Scottish Road Works Commissioner

109

(1) The Transport (Scotland) Act 2005 is amended as follows.

(2) In section 16 (creation, appointment, status and funding of Scottish Road Works Commissioner), after subsection (4) insert—

(4A) The Commissioner is, as such, to be regarded as a juristic person distinct from the individual for the time being holding the office.

Inspection functions

110

(1) The Transport (Scotland) Act 2005 is amended as follows.

(2) After section 18 insert—

(18A) (1) The Commissioner or an inspector (“the authorised person”) may— (a) enter any premises of the type mentioned in subsection (3) and inspect it and anything in it, (b) require the production of any information relating to the fulfilment of specified functions or obligations, and specify the form in which the information is to be produced, (c) take copies of, or take possession of, information (in whatever form) which relates to the fulfilment of specified functions or obligations and retain it for as long as the authorised person reasonably considers necessary, (d) carry out an examination of, and conduct tests on, any equipment used or to be used in fulfilling specified functions or obligations by— (i) an undertaker, (ii) a road works authority, or (iii) a roads authority, (e) require any person to provide the authorised person with such facilities and assistance as the authorised person reasonably considers necessary. (2) The powers in subsection (1) may be exercised only for the purposes of— (a) establishing whether an offence has been committed under the 1991 Act, (b) establishing whether a duty under section 118 or 119 of the 1991 Act has been breached, or (c) establishing whether a duty under section 60(3A) or 61B of the 1984 Act has been breached. (3) The premises referred to in subsection (1)(a) are— (a) any premises (other than any premises that is used as a dwelling) occupied or used by any of the following persons for the purposes of exercising their functions as— (i) an undertaker, (ii) a road works authority, or (iii) a roads authority, or (b) any land on which works in roads are being carried out. (4) For the purposes of this section— (a) an “inspector” means a member of staff— (i) appointed under paragraph 1(1) of schedule 2, and (ii) designated by the Scottish Ministers as an inspector for the purpose of this section, (b) a “specified function or obligation” means— (i) any function or obligation under the 1991 Act, or (ii) any function or obligation under the 1984 Act so far as it relates to works in roads. (18B) (1) This section applies to the powers conferred by section 18A(1). (2) A sheriff may grant a warrant under this subsection only if the sheriff is satisfied, by evidence on oath— (a) that there are reasonable grounds for entering premises— (i) for a purpose specified in section 18A(2), and (ii) of a type mentioned in section 18A(3)(a), and (b) that— (i) entry to the premises has been refused, (ii) such a refusal is reasonably expected, (iii) the premises are unoccupied, or (iv) the occupier is temporarily absent. (3) A warrant authorises an authorised person— (a) to enter the premises, (b) to exercise any other power conferred by section 18A(1), and (c) if necessary, to use reasonable force in doing so. (4) A warrant expires— (a) 28 days after the day on which the warrant was granted, or (b) if earlier, when any period as is specified in it for the purpose for which it was granted expires. (18C) (1) This section applies to the powers conferred by section 18A(1) (whether exercised by virtue of that section or under a warrant granted under section 18B). (2) The power of entry may be exercised only at a reasonable time of day. (3) An authorised person seeking to exercise a power must, on request, produce evidence of the person's identity and authorisation before exercising the power. (4) An authorised person may take onto the premises such other persons, and such materials and equipment, as the authorised person considers necessary. (5) If an authorised person enters the premises by virtue of a warrant, the authorised person must, if taking possession of anything under section 18A(1)(c), leave a statement on the premises giving particulars of what has been taken and by whom. (6) On leaving any premises which an authorised person is authorised to enter under a warrant, the person must, if the premises are unoccupied or the occupier is temporarily absent, leave the premises as effectively secured against entry as the authorised person found them. (18D) (1) A person commits an offence if the person— (a) without reasonable excuse, fails to comply with a requirement of an authorised person, or (b) intentionally obstructs an authorised person in the exercise of a power conferred by section 18A(1) or by virtue of section 18F. (2) A person who commits an offence under subsection (1) is liable— (a) on summary conviction, to a fine not exceeding the statutory maximum, (b) on conviction on indictment, to a fine. (18E) (1) An authorised person does not incur any civil or criminal liability for anything done or omitted to be done in the exercise or purported exercise of a power conferred by section 18A(1) or by virtue of section 18F. (2) Subsection (1) does not apply where it is proved that— (a) the authorised person acted in bad faith, (b) the authorised person failed to exercise a reasonable degree of care and skill, or (c) the authorised person did not act on reasonable grounds. (3) For the purpose of subsection (1), no regard is to be had to any defect in the appointment of an authorised person. (4) Subsection (1) does not affect any liability of any other person in respect of things done or omitted to be done by the authorised person. (18F) (1) The Scottish Ministers may by regulations make further provision about the functions of authorised persons in relation to inspections. (2) Regulations under subsection (1) may, in particular, make provision— (a) conferring powers on an authorised person, (b) specifying requirements with which an authorised person must comply.

(3) In section 52 (orders and regulations), in subsection (3)—

(a) after “above” insert “ or regulations under section 18F ”,

(b) after “draft of the order” insert “ (or, as the case may be, regulations) ”.

(4) In paragraph 3 of schedule 2 (Scottish Road Works Commissioner: further provision)—

(a) the existing text becomes sub-paragraph (1), and

(b) after sub-paragraph (1), insert—

(2) A report under sub-paragraph (1)— (a) must include information on the use made during the year of the Commissioner's inspection functions conferred by section 18A or by virtue of section 18F, (b) may include recommendations— (i) as to how to improve the carrying out of works in roads, (ii) in furtherance of the Commissioner's functions under section 17(1)(b) or (c), (iii) on any other matter relating to the Commissioner's functions. (3) The Commissioner may at any time give the Scottish Ministers and publish a report on any person who has functions conferred on or permissions granted to them by or under the 1991 Act who has— (a) failed to comply with the 1991 Act and any obligations imposed on them under it, or (b) failed to follow good practice within the meaning of section 17(4).

Compliance notices

111

(1) The New Roads and Street Works Act 1991 is amended as follows.

(2) After section 153 insert—

(153A) (1) Where the Commissioner considers that a person has breached a specified duty to which the person is subject, the Commissioner may issue a compliance notice to the person. (2) A “compliance notice” is a notice requiring the person to whom it is issued to take the steps set out in the notice in order to address the person's breach of a specified duty. (3) For the purpose of this section, the specified duties are the duties— (a) in the Roads (Scotland) Act 1984, under— (i) section 60(1) and (3A) (fencing and lighting of obstructions and excavations), (ii) section 61B (requirement for qualified supervisors and operatives), (b) in this Act, under— (i) section 112B (duty to enter certain information in the Scottish Road Works Register), (ii) section 113(1) and (4) (advance notice of certain works), (iii) section 114(1) (notice of starting date of works), (iv) section 114A(2) (notice confirming start of works), (v) section 116(2) (notice of emergency works), (vi) section 118 (general duty of road works authority to co-ordinate works), other than the duty to issue or approve codes of practice under subsection (3), (vii) section 119 (general duty of undertakers to co-operate), other than the duty under subsection (2), (viii) section 124(1) and (2) (safety measures), (ix) section 126(1), (2) and (2C) (qualifications of supervisors and operatives), (x) section 129(1) to (5) (duty of undertaker to reinstate), (xi) section 130(1) and (2) (materials, workmanship and standard of reinstatement), (xii) section 139(1B) and (2) (duty to inform undertakers of location of apparatus), (xiii) section 140(1) (duty to maintain apparatus). (153B) (1) A compliance notice may not be issued to a person in respect of a breach of a duty arising out of a particular act or omission if a compliance notice has previously been issued to the person (and not withdrawn) in respect of the same breach arising out of the same act or omission. (2) A compliance notice may not be issued to a person— (a) in respect of a breach of a duty arising out of a particular act or omission which amounts to an offence, and (b) requiring that person to take steps to stop committing the offence, if criminal proceedings have been brought against the person for the same offence arising out of the same act or omission. (3) A compliance notice issued in contravention of subsection (1) or (2) is of no effect. (153C) (1) A compliance notice must include the following information— (a) a statement of the grounds for issuing the notice, including a statement of— (i) the duty that is alleged to have been breached, and (ii) the act or omission which has caused the Commissioner to conclude that the duty has been breached, (b) details of the steps that the Commissioner requires the person to whom the notice is issued to take in order to— (i) stop breaching the duty, or (ii) ensure that the duty will not be breached in future, (c) the date of issue of the notice, (d) the period of time within which the required steps are to be taken (“the compliance period”), (e) information about the person to whom, and as to how and by when, any representations about the notice may be made, (f) information about the right of appeal, including the period of time within which an appeal may be made, (g) an explanation of the consequences of failure to comply with the requirements of the notice. (2) The reference in subsection (1)(d) to the period of time within which the required steps are to be taken is a reference to such period of not less than 28 days, beginning with the date on which the notice was issued, as the Commissioner determines. (3) The Scottish Ministers may by regulations make further provision about the form and content of compliance notices including, in particular— (a) provision about the form and content of any of the information required to be included under subsection (1), (b) provision about other information that is to be included in addition to that required under subsection (1). (153D) (1) The Commissioner may vary a compliance notice so as to extend the compliance period. (2) A compliance notice may be varied in accordance with subsection (1)— (a) at any time before expiry of the compliance period, (b) by issuing a notice in writing to that effect to the person to whom the compliance notice was issued. (3) The variation of a compliance notice under this section does not affect the date of its issue for the purpose of section 153F. (153E) (1) The Commissioner may withdraw a compliance notice. (2) A compliance notice may be withdrawn— (a) at any time before completion of the steps that are to be taken to comply with the requirements of the notice, (b) by issuing a notice in writing to that effect to the person to whom the compliance notice was issued. (3) Where a compliance notice is withdrawn, it is to be treated as if it had never been issued. (153F) (1) A person to whom a compliance notice has been issued may, before the expiry of the period of 21 days beginning with the date of issue of the notice, appeal to a sheriff against the decision to issue the notice. (2) In an appeal under this section, the sheriff may— (a) cancel the compliance notice, or (b) affirm the notice, either with or without modifications. (3) Where an appeal is made under this section, the compliance period is suspended until the appeal is finally determined or is withdrawn. (153G) (1) If a person to whom a compliance notice has been issued fails, without reasonable excuse, to comply with the notice, the person commits an offence. (2) Where a person to whom a compliance notice has been issued fails to take any step required by the notice, the person does not, by reason of that failure, commit an offence under subsection (1) if— (a) the person takes other steps to— (i) stop breaching the duty in respect of which the notice was issued, or (as the case may be) (ii) ensure that the duty in respect of which the notice was issued will not be breached in future, and (b) the Commissioner notifies the person in writing that those steps are acceptable for the purposes of complying with the notice. (3) A person who commits an offence under subsection (1) is liable— (a) on summary conviction, to a fine not exceeding £50,000, (b) on conviction on indictment, to a fine. (153H) (1) This section applies where a compliance notice is issued to a person— (a) in respect of a breach of a duty arising out of a particular act or omission which amounts to an offence, and (b) requiring that person to take steps to stop committing the offence. (2) Criminal proceedings for the offence may not be brought against the person in respect of the same act or omission before the end of the compliance period. (3) If the person— (a) complies with the requirements of the compliance notice, or (b) though failing to comply, by virtue of section 153G(2) does not commit an offence under section 153G(1) in relation to the notice, the person may not at any time be convicted of the offence arising out of the same act or omission. (153I) (1) The Scottish Ministers may by regulations make such supplementary, incidental or consequential provision as they consider appropriate in connection with compliance notices and the carrying out of the Commissioner's functions under sections 153A to 153H. (2) Regulations under subsection (1) may, in particular, include provision facilitating, prohibiting or restricting— (a) the issuing of a compliance notice in respect of a breach of a duty arising out of a particular act or omission in cases where a fixed penalty notice has been issued in respect of the same act or omission, (b) the issuing of a fixed penalty notice in respect of an act or omission in cases where a compliance notice has been issued in respect of the breach of a duty arising out of the same act or omission. (3) Regulations under subsection (1) may make such modifications of section 153H and paragraph 6 of schedule 6B as the Scottish Ministers consider appropriate in relation to the case where a person has been issued with a compliance notice and a fixed penalty notice in relation to the same breach of a duty arising out of the same act or omission. (4) But, for cases where a compliance notice is issued to a person— (a) in respect of a breach of a duty arising out of a particular act or omission which amounts to an offence, and (b) requiring that person to take steps to stop committing the offence, regulations under subsection (1) may not make provision which has the effect that the person may still be convicted of the offence if the condition in subsection (5) is met. (5) The condition is that the person both— (a) makes payment in accordance with the fixed penalty notice, and (b) complies with the requirements of the compliance notice or, though failing to comply, by virtue of section 153G(2) does not commit an offence under section 153G(1) in relation to the notice. (6) In this section, “fixed penalty notice“ means a fixed penalty notice within the meaning given in schedule 6B.

(3) In section 163 (meaning of “prescribed” and regulations generally), after subsection (2) insert—

(2A) Regulations under section 153I(1) which modify section 153H or paragraph 6 of schedule 6B are subject to the affirmative procedure.

Fixed penalty notices

112

(1) The New Roads and Street Works Act 1991 is amended as follows.

(2) In schedule 6A (fixed penalty offences under Part 4), at the end of the table, insert—

An offence under section 153G(1)	Failure to comply with a compliance notice

(3) In schedule 6B (fixed penalties for certain offences under Part 4)—

(a) in paragraph 1(1) for “An” substitute “ The Commissioner, an authorised member of the Commissioner's staff or an ”,

(b) after paragraph 1(1) insert—

(1A) But, despite sub-paragraph (1), a road works authority may not give a fixed penalty notice in relation to an offence under section 153G(1).

(i) the words after “Schedule” become paragraph (a),

(ii) after paragraph (a), insert—

(b) “issuing authority” means the Commissioner or (as the case may be) the road works authority.

(d) in paragraph 4—

(i) in sub-paragraph (1), after “subject to” insert “ sub-paragraph (1A) and ”,

(ii) after sub-paragraph (1), insert—

(1A) The penalty for a fixed penalty offence in relation to an offence under section 153G(1) is such amount, not exceeding £100,000, as is prescribed.

(e) in paragraph 5, before sub-paragraph (1) insert—

(A1) This paragraph applies to fixed penalty offences other than an offence under section 153G(1).

(f) in paragraph 7(4)(b) for “road works authority in whose area the offence was committed” substitute “ issuing authority ”,

(g) after paragraph 13, insert—

(13A) (1) The Scottish Ministers may by regulations make such supplementary, incidental or consequential provision as they consider appropriate in connection with fixed penalty notices and the carrying out of issuing authorities' functions under this schedule. (2) Regulations under sub-paragraph (1) may, in particular, include provision prohibiting or restricting the giving of a fixed penalty notice to a person in respect of an offence arising out of an act or omission in cases where the person has already been given a fixed penalty notice in respect of the same offence arising out of the same act or omission by a different issuing authority.

(h) in each of the following paragraphs, for each occurrence of the expression “road works authority” substitute “ issuing authority ”

(i) paragraph 3(3),

(ii) paragraph 4(3),

(iii) paragraph 6(3) and (5)(a),

(iv) paragraph 7(4)(a),

(v) paragraph 8(1), (2)(a) and (3),

(vi) paragraph 12(1) and (2).

Functions in relation to the Scottish Road Works Register

113

(1) Section 112A of the New Roads and Street Works Act 1991 (the Scottish Road Works Register) is amended as follows.

(2) For subsections (6) and (7) substitute—

(6A) The Commissioner is to— (a) make publicly available, in such form and manner as the Commissioner considers appropriate— (i) information contained in the SRWR relating to the timing, location, duration and purpose of works in roads, and (ii) such other information contained in the SRWR as the Scottish Ministers may prescribe, and (b) make information contained in the SRWR available to— (i) any person having authority to execute works of any description in a road, or (ii) any person who does not have that authority, but who appears to the Commissioner to have sufficient interest in the information to be permitted to access it.

Permission to execute works in a road

114

(1) In the Roads (Scotland) Act 1984, section 61 (granting of permission to place etc. apparatus under a road) is repealed.

(2) In the New Roads and Street Works Act 1991, in section 109 (permission to execute road works), subsections (7) and (8) are repealed.

Safety measures for the carrying out of works in roads

Fencing and lighting of obstructions and excavations

115

(1) The Roads (Scotland) Act 1984 is amended as follows.

(2) In section 60 (fencing and lighting of obstructions and excavations)—

(a) in subsection (1), after “person” insert “ (other than a roads authority) ”,

(b) after subsection (3) insert—

(3A) Where the roads authority places or deposits anything on a road so as to cause an obstruction, or executes works in a road, they must comply with the requirements in paragraphs (a) to (d) of subsection (1).

(i) for “or (2)” substitute “ , (2) or (3A) ”,

(ii) for “either” substitute “ any ”.

(3) After section 60 insert—

(60A) (1) The Scottish Ministers may, for the purposes of section 60, and following consultation with such persons as they consider appropriate, issue or approve codes of practice giving practical guidance as to the matters mentioned in that section. (2) A code of practice under subsection (1) must be published in such manner as the Scottish Ministers consider appropriate as soon as reasonably practicable after it is issued or approved. (3) If (and in so far as) a person complies with such a code of practice, the person is to be taken to comply with the requirements imposed on the person by section 60(1) or, as the case may be, (3A). (4) A failure to comply with such a code of practice is evidence of a failure to comply with the requirements imposed on the person by section 60(1) or, as the case may be, (3A).

(4) In schedule 8 (penalties for offences)—

(a) in respect of the entry for section 60(3) (paragraph 9 in column 1), in column 2, for “Level 3.” substitute “ Level 5. ”,

(b) in respect of the entry for section 60(4) (paragraph 10 in column 1), in column 2, for “Level 3.” substitute “ Level 5. ”.

Qualifications of supervisors and operatives

116

(1) In the Roads (Scotland) Act 1984, after section 61A insert—

(61B) (1) This section applies to any person (including a roads authority) executing— (a) works (other than road works within the meaning of section 107(3) of the New Roads and Street Works Act 1991) in or on a road or works which otherwise involve a person placing or depositing anything on a road so as to cause an obstruction— (i) to which the requirements of section 60(1)(b) or (c) apply, and (ii) which involve the placing of lights, fences, barriers or signs on a carriageway, (b) works in a road which involve— (i) breaking up the road, or any sewer, drain or tunnel under it, or (ii) tunnelling or boring under the road, and (c) works to subsequently reinstate the road. (2) The person executing the works must secure that— (a) the execution of the works is supervised by an individual having a prescribed qualification as a supervisor, and (b) there is on site at all times when any such works are in progress at least one individual having a prescribed qualification as a trained operative. (3) Where a roads authority are not the person who is executing the works, the authority may by notice require the person executing the works— (a) to notify the authority of the name of any individual who is or has been the supervisor, or trained operative, in respect of the work, and (b) to provide the authority with prescribed evidence of the requisite qualification of the individual. (4) The Scottish Road Works Commissioner may by notice require the roads authority— (a) to notify the Commissioner of the name of any individual who is or has been the supervisor or trained operative in respect of any work to which this section applies, and (b) to provide the Commissioner with prescribed evidence of the requisite qualification of the individual. (5) A notice under subsection (3) or (4) may— (a) require the notification of— (i) the name of an individual who was the supervisor or, as the case may be, trained operative at a particular time, (ii) all individuals who have been the supervisor, or as the case may be, trained operative, (b) be given at any time while the works are being executed or within such period after their completion as is prescribed. (6) A person who receives a notice under subsection (3) must comply with the requirements of the notice within the period and manner prescribed. (7) A person, other than a roads authority, who fails to comply with a duty imposed on the person by subsection (2) or (6) commits an offence. (8) A person who commits an offence under subsection (7) is liable on summary conviction to a fine not exceeding level 5 on the standard scale. (9) The Scottish Ministers may by regulations make provision for the purposes of this section, including provision— (a) specifying circumstances in which the duties in subsection (2) do not apply to a person executing works in a road, (b) specifying— (i) circumstances in which more than one trained operative must be on site at all times when work is in progress, and (ii) the number of trained operatives that must be on site in those circumstances, (c) about the approval of bodies conferring qualifications (and the withdrawal of such approval), (d) about the circumstances in which a qualification may be conferred, (e) about the form of any evidence to be issued by an approved body to certify or otherwise show that a qualification has been conferred on an individual. (10) In this section, “prescribed” means prescribed by the Scottish Ministers in regulations made under subsection (9). (11) This section does not apply to an undertaker executing road works, within the meaning of Part IV of the New Roads and Street Works Act 1991.

(2) In the New Roads and Street Works Act 1991, in section 126 (qualifications of supervisors and operatives)—

(a) after subsection (1) insert—

(1ZA) The duty under subsection (1) continues until the road is reinstated.

(b) after subsection (2) insert—

(2ZA) The duty under subsection (2) continues until the road is reinstated.

(2ZB) For the purpose of subsection (2), the Scottish Ministers may by regulations specify— (a) circumstances in which more than one trained operative must be on site at all times when work is in progress, and (b) the number of trained operatives that must be on site in those circumstances.

Commencement and completion notices

117

(1) The New Roads and Street Works Act 1991 is amended as follows.

(2) In section 112B (duty to enter information in the Scottish Road Works Register)—

(a) after subsection (2) insert—

(2A) On the completion of works of the kind referred to in subsection (2), the road works authority must, within such period as may be prescribed, enter in the SRWR such information about their completion (including the date on which the works were completed) as may be prescribed.

(b) after subsection (5) insert—

(5A) Where a road works authority, a local roads authority or the Scottish Ministers— (a) are under a duty to enter in the SRWR the prescribed information about proposed works under this section, and (b) have begun to execute the works, they must, within such period as may be prescribed, enter in the SRWR the date on and time at which the works began and any further prescribed information.

(i) after “shall” insert “ , within such period as may be prescribed, ”,

(ii) after “completion” where it second occurs insert “ (including the date on which the works were completed) ”,

(d) after subsection (8) insert—

(9) For the purposes of subsections (2A), (5A) and (6), different periods of notice may be prescribed for different descriptions of works.

(3) After section 114 insert—

(114A) (1) This section applies where an undertaker— (a) is under a duty to give notice of the undertaker's intention to begin to execute road works under section 114(1), and (b) has begun to execute the works. (2) The undertaker must, within such period as may be prescribed, give notice of the date on and time at which the works began. (3) Different periods of notice may be prescribed for different descriptions of works or in cases where the undertaker has been given notice under section 117(1). (4) Cases may be prescribed in which no notice is required under subsection (2). (5) For the purposes of subsection (2), an undertaker gives notice by— (a) giving notice to any person or authority to whom notice is required to be given under section 114(3A), (b) entering in the SRWR a copy of the notice. (6) An undertaker who, in contravention of subsection (2), fails to give notice commits an offence. (7) A person who commits an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale. (8) In proceedings against a person for an offence under this section, it is a defence for the person to show that the contravention was attributable— (a) to the person not knowing the position, or not knowing of the existence, of another person's apparatus, or (b) to the person not knowing the identity or address of— (i) a relevant authority, or (ii) the person to whom any apparatus belongs, and that the person's ignorance was not due to any negligence on the person's part or to any failure to make inquiries which the person ought reasonably to have made.

(4) In section 129 (duty of undertaker to reinstate)—

(a) in subsection (3), for the words from “before” to “completed” substitute “ within such period after the reinstatement is completed as may be prescribed ”,

(b) in subsection (4), after “so” insert “ within such period as may be prescribed ”,

(5B) For the purposes of subsections (3) and (4), different periods of notice may be prescribed for different descriptions of works.

Reinstatement of roads following works

Reinstatement quality plans

118

(1) The New Roads and Street Works Act 1991 is amended as follows.

(2) After section 130 insert—

(130A) (1) This section applies where a person (other than a roads authority) proposes to execute road works or works for road purposes which will involve— (a) breaking up the road, or any sewer, drain or tunnel under it, (b) tunnelling or boring under the road, (c) any other activity that will involve reinstating the road. (2) Before commencing the proposed works, the person must enter in the SRWR— (a) a plan, approved by the Commissioner, which sets out the intended approach to reinstating the road after completion of the proposed works (a “specific reinstatement quality plan”), or (b) either— (i) a plan, approved by the Commissioner, which sets out the intended approach to reinstating roads in circumstances such as those applicable for the proposed works (a “general reinstatement quality plan”), or (ii) a notice confirming that an applicable general reinstatement quality plan has previously been approved and entered. (3) Where a person enters a notice under subsection (2)(b)(ii), the Commissioner may require the person, before commencing the proposed works, to enter in the SRWR— (a) a specific reinstatement quality plan for the proposed works, or (b) an updated general reinstatement quality plan, which has been approved by the Commissioner. (4) The Commissioner may approve a plan under this section only if the Commissioner is satisfied that the plan demonstrates the person— (a) is competent to safely and effectively execute the reinstatement of the road, and (b) has in place quality control procedures sufficient to ensure that the reinstatement of the road is to a sufficient standard and in compliance with the statutory obligations applicable to the works. (5) A person who fails to comply with a duty to which the person is subject under subsection (2) or (3) commits an offence. (6) A person who commits an offence under subsection (5) is liable on summary conviction to a fine not exceeding level 5 on the standard scale. (130B) (1) This section applies where a roads authority proposes to execute works for roads purposes which will involve— (a) breaking up the road, or any sewer, drain or tunnel under it, (b) tunnelling or boring under the road, (c) any other activity that will involve reinstating the road. (2) The Commissioner may, at any time before works to reinstate the road commence, require the roads authority to enter in the SRWR a plan, approved by the Commissioner, which sets out the authority's intended approach to reinstating the road in respect of the proposed works. (3) The Commissioner may approve a plan under subsection (2) only if the Commissioner is satisfied that the plan demonstrates that the authority has in place— (a) appropriate arrangements to safely and effectively execute the reinstatement of the road, and (b) quality control procedures sufficient to ensure that the reinstatement of the road is to a sufficient standard and in compliance with the statutory obligations applicable to the works. (4) Nothing in this section prevents a roads authority from— (a) preparing a plan for the reinstatement of a road and sending it to the Commissioner for approval, (b) entering a plan approved by the Commissioner in the SRWR. (130C) (1) The Scottish Ministers may issue or approve for the purposes of sections 130A and 130B codes of practice giving practical guidance as to the matters mentioned in sections 130A and 130B (and regulations made under this section). (2) The Scottish Ministers may by regulations make further provision about plans to be entered in the SRWR under section 130A or 130B. (3) In particular, and without limit to that generality, regulations under subsection (2) may include provision— (a) about the form and content of the plans, (b) about the form, content and timing of any notice to be entered in the SRWR under section 130A(2)(b)(ii), (c) specifying circumstances in which the Commissioner may (or must) require— (i) a person to enter a plan in the SRWR under section 130A(3), or (ii) a roads authority to enter a plan in the SRWR under section 130B(2), (d) relating to the process to be followed (including any time periods which must be complied with) by the Commissioner in order to require a plan to be entered in the SRWR, (e) requiring a plan to be reviewed by the person who has entered it in the SRWR at such intervals or otherwise in such circumstances as are specified, (f) about the consequences of complying, and of failing to comply, with a code of practice issued or approved under subsection (1). (4) Regulations under subsection (2) may create offences for failure to comply with requirements imposed under the regulations. (5) Where regulations under subsection (2) include provision creating an offence— (a) they must provide for the offence to be triable summarily only, and (b) they must provide for the maximum penalty for the offence to be a fine, which must not exceed level 5 on the standard scale. (6) Regulations under subsection (2) which include provision creating an offence are subject to the affirmative procedure.

Information about apparatus

119

(1) The New Roads and Street Works Act 1991 is amended as follows.

(2) For section 138 (records of location of apparatus) substitute—

(138A) (1) This section applies where a person— (a) places in, alters the position of, or removes from a road, apparatus that belongs to the person, (b) discovers, in the course of executing other works in a road, apparatus that belongs to the person (but in respect of which no information, or incorrect information, is entered in the SRWR), or (c) is informed under section 139 about the location of apparatus that belongs to the person. (2) The person must, except in such cases as are prescribed, enter in the SRWR such information about the apparatus as is prescribed as soon as is reasonably practicable after the occurrence of an event in paragraph (a) to (c) of subsection (1). (3) If the person fails to comply with the duty under subsection (2)— (a) the person commits an offence, and (b) the person is liable to compensate any person in respect of loss or damage incurred by that person in consequence of the failure. (4) A person guilty of an offence under subsection (3)(a) is liable on summary conviction to a fine not exceeding level 5 on the standard scale. (5) In civil or criminal proceedings against a person arising out of a failure to comply with the duty under subsection (2), it is a defence for the person to show that all reasonable care was taken to secure that no such failure occurred by— (a) the person and the person's employees, and (b) any contractor of the person and the contractor's employees.

(3) In section 139 (duty to inform undertakers of apparatus)—

(a) for subsection (1) substitute—

(1A) Subsection (1B) applies where a person executing works of any description in a road finds apparatus belonging to an undertaker which— (a) is not entered in the SRWR, or (b) is entered in the SRWR but the details pertaining to it are incorrect. (1B) The person must take such steps as are reasonably practicable to inform the undertaker to whom the apparatus belongs of its location and (so far as appears from external inspection) its nature and whether it is in use.

(b) in subsection (2)(a), for the words from “note” to “prescribed)” substitute “ enter in the SRWR ”,

(d) in subsection (4), for “(1)” substitute “ (1B) ”.

(4) The italic heading immediately preceding section 138 becomes “ Duties and liabilities with respect to apparatus ”.

PART 10 — Miscellaneous and general

Health boards: duty to have regard to community benefit in non-emergency patient transport contracts

120

Before entering into a contract for the provision of non-emergency patient transport services, each health board must have regard to the extent to which the contract will improve the economic, social or environmental wellbeing of the board's area in a way additional to the main purpose of the contract in which the requirement is included.

Health boards: duty to work with community transport bodies

121

(1) In providing non-emergency patient transport services, each health board must work with bodies which provide community transport services in its area.

(2) But nothing in subsection (1) requires a body which provides community transport services in its area to undertake work for which it does not have the capacity.

(3) As soon as reasonably practicable after the end of each financial year, each health board must publish a report setting out—

(a) the steps it has taken to comply with the duty in subsection (1),

(b) its position on the extent to which non-emergency patient transport services in its area have been—

(i) effective, and

(ii) cost effective,

(4) A report under subsection (3) may be published in such manner as the board considers appropriate.

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