Transport Act 1968

• (8) Before making any regulations under this Part of this Act. . . the Minister shall consult with such representative organisations as he thinks fit.

Interpretation of Part V

92

• (1) In this Part of this Act. . . , unless the context otherwise requires—

• “articulated combination” means a combination made up of—

• (a) a motor vehicle which is so constructed that a trailer may by partial superimposition be attached to the vehicle in such a manner as to cause a substantial part of the weight of the trailer to be borne by the vehicle, and

• (b) a trailer attached to it as aforesaid:

• “authorised vehicle” means, in relation to an operator’s licence, a vehicle authorised to be used thereunder, whether or not it is for the time being in use for a purpose for which an operator’s licence is required and whether it is specified therein as so authorised or, being of a type so authorised subject to a maximum number, belongs to the holder of the licence or is in his possession under an agreement for hire-purchase, hire or loan;

• “carriage of goods” includes haulage of goods;

• “carrier’s licence” means a licence granted under Part IV of the Act of 1960;

• “contravention”, in relation to any condition or provision, includes a failure to comply with the condition or provision, and “contravenes” shall be construed accordingly;

• “driver” means, in relation to a trailer, the driver of the vehicles by which the trailer is drawn and “drive” shall be construed accordingly;

• “goods” includes goods or burden of any description;

• “goods vehicle” means, subject to subsection (5) of this section, a motor vehicle constructed or adapted for use for the carriage of goods, or a trailer so constructed or adapted;

• “large goods vehicle” shall be construed in accordance with section 71 of this Act;

• “operating centre”, in relation to any vehicle, means the base or centre at which the vehicle is normally kept, and references to an operating centre of the holder of an operator’s licence are references to any place which is an operating centre for authorised vehicles under the licence;

• “owner”, in relation to any land in England and Wales, means a person, other than a mortgagee not in possession, who, whether in his own right or as trustee for any other person, is entitled to receive the rack rent, would be so entitled it it were so let;

• “prescribed” means prescribed by regulations;

• “regulations” means regulations made by the Minister under this Part of this Act;

“subsidiary” means a subsidiary as defined by section 736 of the Companies Act 1985;

• “vehicle combination” means a combination of goods vehicles made up of one or more motor vehicles and one or more trailers all of which are linked together when travelling;

and any expression not defined above which is also used in the Act of 1960 has the same meaning as in that Act.

• (2) For the purposes of this Part of this Act, the driver of a vehicle, if it belongs to him or is in his possession under an agreement for hire, hire-purchase or loan, and in any other case the person whose servant or agent the driver is, shall be deemed to be the person using the vehicle; and references to using a vehicle shall be construed accordingly.

• (3) In this Part of this Act references to directing that an operator’s licence be curtailed are references to directing (with effect for the remainder of the duration of the licence or for any shorter period) all or any of the following, that is to say—

• (a) that any one or more of the vehicles specified in the licence be removed therefrom;

• (b) that the maximum number of trailers or of motor vehicles specified in the licence in pursuance of section 61(1)(b) or (c) of this Act be reduced;

• (c) that the addition of authorised vehicles under the said section 61(1)(c) be no longer permitted.

• (d) that any one or more of the places specified in the licence as operating centres be removed therefrom.

• (4) In this Part of this Act, references to the bankruptcy of a person shall, as respects Scotland, be construed as references to an award of sequestration having been made of his estate.

• (5) In this Part of this Act. . . references to goods vehicles do not include references to tramcars or trolley vehicles operated under statutory powers within the meaning of Schedule 4 to the Road Traffic Act 1988.

• (6) Anything required or authorised by this Part of this Act to be done to or by a licensing authority by whom a licence. . . was granted may be done to or by any person for the time being acting as licensing authority for the area for which the first-mentioned authority was acting at the time of the granting of the licence. . . .

Abolition of carriers’ licensing for certain vehicles

Carriers' licences not to be required for small vehicles or for medium vehicles covered by operators' licences

93

• (1) Section 164 of the Act of 1960 (users of goods vehicles to hold carriers’ licences) shall cease to apply to the use of any vehicle the unladen weight of which does not exceed , and any carrier’s licence so far as it authorises the use of such a vehicle shall cease to have effect.

• (2) The said section 164 shall not apply to the use of any vehicle for the use of which an operator’s licence is required, unless that vehicle is a large goods vehicle.

Transitional provisions and amendments

Transitional provisions and amendments

94

• (1) Where, before the day on which section 60 of this Act comes into force in relation to any vehicles, an application for an operator’s licence is made in respect of those vehicles by a person who is the holder of a carrier’s licence in respect of all or any of those vehicles, section 63 of this Act shall not apply to the application and section 64 of this Act shall apply to it with the omission of subsection (2)(b), (c) and (e).

• (2) Notwithstanding section 171(3) of the Act of 1960 (which requires an application for a C licence under Part IV of that Act to be made to the licensing authority for the area in which the principal place of business of the applicant or his head office is situated), any application for such a licence in respect of vehicles which consist of or include vehicles in relation to which section 60 of this Act has come into force shall be made to the licensing authority (within the meaning of the said Part IV) for the area containing the operating centre or operating centres of the vehicles proposed to be used under the licence.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) The enactments specified in Part I of Schedule 10 to this Act shall have effect subject to the amendments there specified.

• (8) On the appointed day for the purposes of this subsection—

• (a) the enactments specified in Part II of Schedule 10 to this Act shall have effect subject to the amendments there specified;. . .

• (b) . . .

• (9) Regulations may provide for the repayment in the prescribed circumstances of fees paid under section 182 of the Act of 1960 in respect of carriers’ licences which are in force on the appointed day for the purpose of the last foregoing subsection.

• (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part VI — Drivers’ Hours

Vehicles and drivers subject to control under Part VI

95

• (1) This Part of this Act shall have effect with a view to securing the observance of proper hours or periods of work by persons engaged in the carriage of passengers or goods by road and thereby protecting the public against the risks which arise in cases where the drivers of motor vehicles are suffering from fatigue ...

• (1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) This Part of this Act applies to—

• (a) passenger vehicles, that is to say—

• (i) public service vehicles; and

• (ii) motor vehicles (other than public service vehicles) constructed or adapted to carry more than twelve passengers;

• (b) goods vehicles, that is to say—

• (i) heavy locomotives, light locomotives, motor tractors and any motor vehicle so constructed that a trailer may by partial superimposition be attached to the vehicle in such a manner as to cause a substantial part of the weight of the trailer to be borne by the vehicle; and

• (ii) motor vehicles (except those mentioned in paragraph (a) of this subsection) constructed or adapted to carry goods other than the effects of passengers.

• (c) vehicles not falling within paragraph (a) or (b) of this subsection which—

• (i) are vehicles within the meaning given by Article 4 of the Community Drivers’ Hours Regulation; and

• (ii) are not referred to in Article 3 of that Regulation.

• (3) This Part of this Act applies to any such person as follows (in this Part of this Act referred to as “a driver”), that is to say—

• (a) a person who drives a vehicle to which this Part of this Act applies in the course of his employment (in this Part of this Act referred to as “an employee-driver”); and

• (b) a person who drives such a vehicle for the purposes of a trade or business carried on by him (in this Part of this Act referred to as “an owner-driver”);

and in this Part of this Act references to driving by any person are references to his driving as aforesaid.

Permitted driving time and periods of duty

96

• (1) Subject to the provisions of this section, a driver shall not on any working day drive a vehicle or vehicles to which this Part of this Act applies for periods amounting in the aggregate to more than ten hours.

• (2) Subject to the provisions of this section, if on any working day a driver has been on duty for a period of, or for periods amounting in the aggregate to, five and a half hours and—

• (a) there has not been during that period, or during or between any of those periods, an interval of not less than half an hour in which he was able to obtain rest and refreshment; and

• (b) the end of that period, or of the last of those periods, does not mark the end of that working day,

there shall at the end of that period, or of the last of those periods, be such an interval as aforesaid.

• (3) Subject to the provisions of this section, the working day of a driver—

• (a) except where paragraph (b) or (c) of this subsection applies, shall not exceed eleven hours;

• (b) if during that day he is off duty for a period which is, or periods which taken together are, not less than the time by which his working day exceeds eleven hours, shall not exceed twelve and a half hours;

• (c) if during that day—

• (i) all the time when he is driving vehicles to which this Part of this Act applies is spent in driving one or more express carriages or contract carriages; and

• (ii) he is able for a period of not less than four hours to obtain rest and refreshment,

shall not exceed fourteen hours.

• (4) Subject to the provision of this section, there shall be, between any two successive working days of a driver, an interval for rest which—

• (a) subject to paragraph (b) of this subsection, shall not be of less than eleven hours;

• (b) if during both those days all or the greater part of the time when he is driving vehicles to which this Part of this Act applies is spent in driving one or more passenger vehicles, may, on one occasion in each working week, be of less than eleven hours but not of less than nine and a half hours;

and for the purposes of this Part of this Act a period of time shall not be treated, in the case of an employee-driver, as not being an interval for rest by reason only that he may be called upon to report for duty if required.

• (5) Subject to the provisions of this section a driver shall not be on duty in any working week for periods amounting in the aggregate to more than sixty hours.

• (6) Subject to the provisions of this section, there shall be, in the case of each working week of a driver, a period of not less than twenty-four hours for which he is off duty, being a period either falling wholly in that week or beginning in that week and ending in the next week; but—

• (a) where the requirements of the foregoing provisions of this subsection have been satisfied in the case of any week by reference to a period ending in the next week, no part of that period (except any part after the expiration of the first twenty-four hours of it) shall be taken into account for the purpose of satisfying those requirements in the case of the next week; and

• (b) those requirements need not be satisfied in the case of any working week of a driver who on each working day falling wholly or partly in that week drives one or more stage carriages if that week is immediately preceded by a week in the case of which those requirements have been satisfied as respects that driver or during which he has not at any time been on duty.

• (7) If in the case of the working week of any driver the following requirement is satisfied, that is to say, that, in each of the periods of twenty-four hours beginning at midnight which make up that week, the driver does not drive a vehicle to which this Part of this Act applies for a period of, or periods amounting in the aggregate to, more than four hours, the foregoing provisions of this section shall not apply to him in that week, except that the provisions of subsections (1), (2) and (3) shall nevertheless have effect in relation to the whole of any working day falling partly in that week and partly in a working week in the case of which that requirement is not satisfied.

• (8) If on any working day a driver does not drive any vehicle to which this Part of this Act applies—

• (a) subsections (2) and (3) of this section shall not apply to that day, and

• (b) the period or periods of duty attributable to that day for the purposes of subsection (5) of this section shall, if amounting to more than eleven hours, be treated as amounting to eleven hours only.

• (9) For the purposes of subsections (1) and (7) of this section no account shall be taken of any time spent driving a vehicle elsewhere than on a road if the vehicle is being so driven in the course of operations of agriculture or forestry.

• (10) For the purpose of enabling drivers to deal with cases of emergency or otherwise to meet a special need, the Minister may by regulations—

• (a) create exemptions from all or any of the requirements of subsections (1) to (6) of this section in such cases and subject to such conditions as may be specified in the regulations;

• (b) empower a traffic commissioner, subject to the provisions of the regulations—

• (i) to dispense with the observance of all or any of those requirements (either generally or in such circumstances or to such extent as the commissioner thinks fit) in any particular case for which provision is not made under paragraph (a) of this subsection;

• (ii) to grant a certificate (which, for the purposes of any proceedings under this Part of this Act, shall be conclusive evidence of the facts therein stated) that any particular case falls or fell within any exemption created under the said paragraph (a);

and regulations under this subsection may enable any dispensation under paragraph (b)(i) of this subsection to be granted retrospectively and provide for a document purporting to be a certificate granted by virtue of paragraph (b)(ii) of this subsection to be accepted in evidence without further proof.

• (11) If any of the requirements of the domestic drivers’ hours code, is contravened in the case of any driver—

• (a) that driver; and

• (b) any other person (being that driver’s employer or a person to whose orders that driver was subject) who caused or permitted the contravention,

shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale; but a person shall not be liable to be convicted under this subsection if he proved to the court—

• (i) that the contravention was due to unavoidable delay in the completion of a journey arising out of circumstances which he could not reasonably have foreseen; or

• (ii) in the case of a person charged under paragraph (b) of this subsection, that the contravention was due to the fact that the driver had for any particular period or periods driven or been on duty otherwise than in the employment of that person or, as the case may be, otherwise than in the employment in which he is subject to the orders of that person, and that the person charged was not, and could not reasonably have become, aware of that fact.

• (11A) Where, in the case of a driver of a motor vehicle, there is ... a contravention , whether occurring in the United Kingdom, an EU member State or another contracting country, of any requirement of the applicable Community rules as to periods of driving, or distance driven, or periods on or off duty, then the offender and the offender’s employer, and any other person to whose orders the offender was subject, shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale

• (11B) But a person shall not be liable to be convicted under subsection (11A) if—

• (a) he proves the matters specified in paragraph (i) of subsection (11); or

• (b) being charged as the offender’s employer or a person to whose orders the offender was subject, he proves the matters specified in paragraph (ii) of that subsection ; or

• (c) being charged as mentioned in paragraph (b) in respect of a contravention of a provision of the Community Drivers' Hours Regulation, he proves—

• (i) that at the time of the contravention he was complying with Article 10(1) (distance-related payments etc) and Article 10(2) (organisation of drivers’ work etc) of the Community Drivers’ Hours Regulation; and

• (ii) that he took all reasonable steps to avoid the contravention; or

• (d) being charged as mentioned in paragraph (b) in respect of a contravention of a provision of the AETR, the person proves—

• (i) that at the time of the contravention the person was complying with Article 11(1) to (3) of the AETR (organisation of drivers' work, distance-related payments etc); and

• (ii) that the person took all reasonable precautions to avoid the contravention.

• (11C) A person who—

• (a) is subject to the requirement imposed by Article 10(4) of the Community Drivers’ Hours Regulation or Article 11(5) of the AETR (undertakings etc to ensure that contractually agreed transport time schedules respect that provision); and

• (b) fails to take all reasonable steps to comply with that requirement,

shall be liable on summary conviction to a fine not exceeding level 4 on the standard

scale.

• (11D) If a driver who is subject to the orders of more than one transport undertaking fails, without reasonable excuse, to provide each of them with sufficient information to enable them to avoid a contravention of Chapter 2 of the Community Drivers’ Hours Regulation, he shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.

• (12) The Minister may by order—

• (a) direct that subsection (1) of this section shall have effect with the substitution for the reference to ten hours of a reference to nine hours, either generally or with such exceptions as may be specified in the order;

• (b) direct that paragraph (a) of subsection (3) of this section shall have effect with the substitution for the reference to eleven hours of a reference to any shorter period, or remove, modify or add to the provisions of that subsection containing exceptions to the said paragraph (a);

• (c) remove, modify or add to any of the requirements of subsections (2), (4), (5) or (6) of this section or any of the exemptions provided for by subsections (7), (8) and (9) thereof;

and any order under this subsection may contain such transitional and supplementary provisions as the Minister thinks necessary or expedient, including provisions amending any definition in section 103 of this Act which is relevant to any of the provisions affected by the order.

• (13) In this Part of this Act “the domestic driver’s hours code” means the provisions of subsections (1) to (6) of this section as for the time being in force (and, in particular, as modified, added to or substituted by or under any instrument in force under ... subsection (10) or (12) of this section).

Installation and operation of recording equipment in vehicles

97

• (1) No person shall use, or cause or permit to be used, a vehicle to which this section applies

• (a) unless there is in the vehicle recording equipment which—

• (i) has been installed in accordance with the EU Tachographs Regulation (including the relevant technical specifications) or the equivalent EU Regulation;

• (ii) complies with the EU Tachographs Regulation (including the relevant technical specifications); and

• (iii) is being used as provided by Articles 27 to 29 and 32 to 37 of the EU Tachographs Regulation , or

• (b) in which there is recording equipment which has been repaired (whether before or after installation) otherwise than in accordance with the EU Tachographs Regulation or the equivalent EU Regulation;

• (1A) A person shall not be liable to be convicted under subsection (1) of this section if he proves to the court that he neither knew nor ought to have known that the recording equipment had not been installed or repaired, as the case may be, in accordance with the EU Tachographs Regulation.

• (2) A person shall not be liable to be convicted under subsection (1) (a) of this section if he proves to the court that the vehicle in question was proceeding to a place where recording equipment which would comply with ... the EU Tachographs Regulation was to be installed in the vehicle in accordance with that Regulation.

• (3) A person shall not be liable to be convicted under subsection (1) (a) of this section by reason of the recording equipment installed in the vehicle in question not being in working order if he proves to the court that—

• (a) it had not become reasonably practicable for the equipment to be repaired by an approved fitter or workshop; and

• (b) the requirements of Article 37(2) of the EU Tachographs Regulation were being complied with.

• (4) A person shall not be liable to be convicted under subsection (1) (a) of this section by reason of any seal on the recording equipment installed in the vehicle in question not being intact if he proves to the court that—

• (a) the breaking or removal of the seal could not have been avoided;

• (b) it had not become reasonably practicable for the seal to be replaced by an approved fitter or workshop; and

• (c) in all other respects the equipment was being used as provided by Articles 27 to 29 and 32 to 37 of the EU Tachographs Regulation.

• (4A) A person shall not be liable to be convicted under subsection (1)(a) of this section by reason of the driver card not being used with the recording equipment installed in the vehicle in question if he proves to the court that—

• (a) the driver card was damaged, malfunctioning, lost or stolen;

• (b) the requirements of Articles 29(2) to (5), 35 and 37(2) of the EU Tachographs Regulation were being complied with; and

• (c) in all other respects the recording equipment was being used as provided by Articles 27 to 29 and 32 to 37 of that Regulation.

• (4B) A person shall not be liable to be convicted under subsection (1) of this section by reason of using recording equipment which does not bear the relevant UK type-approval mark or the relevant EU type-approval mark (see Article 11A of the EU Tachographs Regulation) if he proves to the court that the use of the recording equipment was in the course of a field test authorised under section 96A.

• (4C) Where a person (“the driver”)—

• (a) in the course of the driver’s employment, uses a vehicle in contravention of subsection (1), and

• (b) is liable to be convicted under that subsection in respect of that use,

the employer also commits an offence and shall be liable on summary conviction to a fine.

• (4D) A person shall not be liable to be convicted under subsection (4C) in respect of the use of a vehicle if the requirements of Article 10(1) and (2) of the Community Drivers’ Hours Regulation (liability of transport undertakings) and Article 33(1) of the EU Tachographs Regulation (responsibility of transport undertakings) were complied with in relation to that use.

• (5) For the purposes of this section recording equipment is used as provided by Articles 27 to 29 and 32 to 37 of the EU Tachographs Regulation if, and only if, the circumstances of its use are such that each requirement of those Articles is complied with.

• (6) This section applies at any time to any vehicles to which this Part of this Act applies if, at that time, Article 3 of the EU Tachographs Regulation requires recording equipment to be installed and used in that vehicle; and in this section and sections 97B to 97G of this Act (so far as those sections relate to the EU Tachographs Regulation) any expression which it is also used in that Regulation has the same meaning as in that Regulation.

• (7) In this Part of this Act—

• “Commission Implementing Regulation (EU) 2016/799” means Commission Implementing Regulation (EU) 2016/799 of 18 March 2016 implementing Regulation (EU) No 165/2014 of the European Parliament and of the Council laying down the requirements for the construction, testing, installation, operation and repair of tachographs and their components, as amended from time to time;

• “Council Regulation (EEC) No 3821/85” means Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport;

• “the equivalent EU Regulation” means Regulation (EU) No 165/2014 of the European Parliament and of the Council on tachographs in road transport as it has effect in EU law, as amended from time to time;

• “the EU Tachographs Regulation” means Regulation (EU) No. 165/2014 of the European Parliament and of the Council on tachographs in road transport , as amended from time to time, ...

• “recording equipment” means equipment for recording information as to the use of a vehicle.

• “the relevant EU type-approval mark”, in relation to recording equipment, means a type-approval mark issued by an EU member State in relation to that type of recording equipment under Article 14 of the equivalent EU Regulation;

• “the relevant technical specifications” means Annex II of Commission Implementing Regulation (EU) 2016/799, and— in the case of a vehicle put into service for the first time before 1st May 2006—Annex I of the EU Tachographs Regulation,Annex IB of Council Regulation (EEC) No 3821/85 for as long as preserved and applied by Article 46 of the EU Tachographs Regulation, orAnnex 1C to Commission Implementing Regulation (EU) 2016/799;in the case of a vehicle put into service for the first time on or after 1 May 2006 but before the date on which the Passenger and Goods Vehicles (Tachographs) (Amendment etc.) Regulations 2019 come into force—Annex IB of Council Regulation (EEC) No 3821/85 for as long as preserved and applied by Article 46 of the EU Tachographs Regulation; orAnnex IC to Commission Implementing Regulation (EU) 2016/799; andin the case of a vehicle put into service for the first time on or after the date on which the Passenger and Goods Vehicles (Tachographs) (Amendment etc.) Regulations 2019 come into force, Annex 1C to Commission Implementing Regulation (EU) 2016/799.

• “the relevant UK type-approval mark”, in relation to recording equipment, means the mark which is “the relevant type-approval mark” in relation to the marking of that equipment, for the purposes of the Motor Vehicles (Type Approval) Regulations 1980.

Written records

98

• (1) The Minister may make regulations—

• (a) for requiring drivers to keep, and employers of employee-drivers to cause to be kept, in such books as may be specified in the regulations records with respect to such matters relevant to the enforcement of this Part of this Act as may be so specified; and

• (b) for requiring owner-drivers and the employers of employee-drivers to maintain such registers as may be so specified with respect to any such books as aforesaid which are in their possession or in that of any employee-drivers in their employment.

• (2) Regulations under this section may contain such supplementary and incidental provisions including provisions supplementary and incidental to the requirements of the applicable Community rules as to books, records or documents as the Minister thinks necessary or expedient, including in particular provisions—

• (a) specifying the person or persons from whom books and registers required for the purposes of the regulations or of the applicable Community rules are to be obtained and, if provision is made for them to be obtained from the Minister, charging a fee for their issue by him (which shall be payable into the Consolidated Fund);

• (b) as to the form and manner of making of entries in such books and registers;

• (c) as to the issue by and return to the employers of employee-drivers of books required to be kept by the latter for the purposes of the regulations;

• (d) requiring any book in current use for the purposes of the regulations to be carried on, or by the driver of, any vehicle, as to the preservation of any books and registers used for those purposes, and otherwise as to the manner in which those books and registers are to be dealt with;

• (e) for exemptions from all or any of the requirements of the regulations in respect of drivers of small goods vehicles as defined in section 103(6) of this Act and for other exemptions from all or any of those requirements.

• (2A) The requirements of regulations made under this section shall not apply as respects the driving of—

• (a) a vehicle to which section 97 of this Act applies and which is installed with recording equipment complying with the EU Tachographs Regulation (including the relevant technical specifications, within the meaning of that section);

• (b) a vehicle to which section 97ZA applies and which is installed with recording equipment complying with the AETR (including the relevant Appendices to the Annex, within the meaning of that section).

• (3) Subject to the provisions of any regulations made by the Minister, a traffic commissioner may dispense with the observance by any employee-driver or his employer, or by any owner-driver, of any requirement imposed under this section, either generally or in such circumstances or to such extent as the commissioner thinks fit, but the traffic commissioner shall not grant such a dispensation unless satisfied that it is not reasonably practicable for the requirement dispensed with to be observed.

• (4) Any person who—

• (a) contravenes any regulations made under this section, or

• (b) contravenes, whether in the United Kingdom, an EU member State or another contracting country, any requirement as to books, records or documents of the applicable Community rules,

shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale, but the employer of an employee-driver shall not be liable to be convicted under this subsection by reason of contravening any such regulation whereby he is required to cause any records to be kept if he proved to the court that he has given proper instructions to his employees with respect to the keeping of the records and has from time to time taken reasonable steps to secure that those instructions are being carried out.

• (4A) A person shall not be liable to be convicted under subsection (4) of this section by reason of contravening any regulation made under this section if he proves to the court that, if the vehicle in question had been such a vehicle as is mentioned in subsection (2A) of this section, there would have been no contravention of the provisions of this Part of this Act so far as they relate to the use of such vehicles.

• (5) Any entry made by an employee-driver for the purposes of regulations under this section or of the applicable Community rules shall, in any proceedings under this Part of this Act, be admissible in evidence against his employer.

Inspection of records and other documents

99

• (1) An officer may, on production if so required of his authority, require any person to produce, and permit him to inspect and copy—

• (a) any book or register which that person is required by regulations under section 98 of this Act to carry or have in his possession for the purpose of making in it any entry required by those regulations or which is required under those regulations to be carried on any vehicle of which that person is the driver;

• (b) any , book or register which that person is required by regulations under section 98 of this Act to preserve;

• (bb) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) if that person is the owner of a vehicle to which this Part of this Act applies, any other document of that person which the officer may reasonably acquire to inspect for the purpose of ascertaining whether the provisions of this Part of this Act or of regulations made thereunder have been complied with;

• (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

and that ..., book, register or document shall, if the officer so requires by notice in writing served on that person, be produced at the office of the traffic commissioner specified in the notice within such time (not being less than ten days) from the service of the notice as may be so specified.

• (2) An officer may, on production if so required of his authority—

• (a) at any time, enter any vehicle to which this Part of this Act applies and inspect that vehicle and any recording equipment installed in it and inspect and copy any record sheet on the vehicle on which a record has been produced by means of the equipment or an entry has been made;

• (b) at any time which is reasonable having regard to the circumstances of the case, enter any premises on which he has reason to believe that such a vehicle is kept or that any such record sheets, books, registers or other documents as are mentioned in subsection (1) of this section are to be found, and inspect any such vehicle, and inspect and copy any such record sheet, book, register or document, which he finds there.

• (3) For the purpose of exercising his powers under subsection (2)(a) and, in respect of a document carried on, or by the driver of, a vehicle, under subsection (1)(a) ... of this section, an officer may detain the vehicle in question during such time as is required for the exercise of that power.

• (4) Any person who—

• (a) fails to comply with any requirement under subsection (1) of this section; or

• (b) obstructs an officer in the exercise of his powers under subsection (2) or (3) of this section,

shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

• (4A) A person shall not be liable to be convicted under subsection (4) of this section by reason of failing to comply with any requirement under subsection (1)(a) or (b) of this section if he proves to the court that, if the vehicle in question had been such a vehicle as is mentioned in section 98(2A) of this Act, there would have been no contravention of the provisions of this Part of this Act so far as they relate to the use of such vehicles.

• (5) Any person who makes, or causes to be made, ...any entry in a book, register or document kept or carried for the purposes of regulations under section 98 thereof ... which he knows to be false or, with intent to deceive, alters or causes to be altered any such record or entry shall be liable—

• (a) on summary conviction, to a fine not exceeding £200;

• (b) on conviction on indictment, to imprisonment for a term not exceeding two years.

• (6) If an officer has reason to believe that an offence under subsection (5) of this section has been committed in respect of any record or document inspected by him under this section, he may seize that record or document; and where a record or document is seized as aforesaid and within six months of the date on which it was seized no person has been charged since that date with an offence in relation to that record or document under that subsection and the record or document has not been returned to the person from whom it was taken, a magistrate’s court shall, on an application made for the purpose by that person or by an officer, make such order respecting the disposal of the record or document and award such costs as the justice of the case may require.

• (7) Any proceedings in Scotland under subsection (6) of this section shall be taken by way of summary application in the sheriff court; and in the application of that subsection to Scotland references to costs shall be construed as references to expenses.

• (8) In this Part of this Act “officer” means an examiner appointed under section 66A of the Road Traffic Act 1988 and any person authorised for the purposes of this Part by a traffic commissioner.

• (9) The powers conferred by this Part of this Act on an officer shall be exercisable also by a police constable, who shall not, if wearing uniform, be required to produce any authority.

• (10) In this section references to the inspection and copying of any record produced by means of recording equipment installed in a vehicle include references to the application to the record of any process for eliciting the information recorded thereby and to taking down the information elicited from it.

• (11) Subsections (1) to (7) and (10) do not apply in respect of vehicles to which section 97 or 97ZA of this Act applies.

Power to give effect to international agreements

100

• (1) The Minister may by order make, in relation to Great Britain, such provision as appears to him to be requisite for enabling the United Kingdom to become a party to any international agreement relating to the drivers or crews of vehicles used on international journeys, and, without prejudice to the generality of the foregoing provisions of this subsection, an order under this subsection may—

• (a) modify or exclude any of the provisions contained in or having effect under this Part of this Act or contained in or having effect under any other enactment passed before or after this Act;

• (b) provide for exemptions from all or any of the provisions of the order;

• (c) provide for the punishment of contraventions of any provision of the order;

• (d) contain such supplementary, incidental or consequential provisions as appear to the Minister to be necessary or expedient.

• (2) The Governor of Northern Ireland may, by Order in the Privy Council of Northern Ireland, make provision in relation to Northern Ireland for any purpose for which provision may be made in relation to Great Britain under subsection (1) of this section, and in relation to any such Order the provisions of that subsection shall apply accordingly as if for references to the Minister there were substituted references to the Governor of Northern Ireland; and any such Order may authorise the Ministry of Home Affairs for Northern Ireland to make regulations for any of the purposes of the Order.

Orders and regulations under Part VI

101

• (1) In relation to orders or regulations made under this Part of this Act, the provisions of this section shall have effect in addition to the provisions of section 157 of this Act.

• (2) Any order or regulations under this Part of this Act may make different provision for different classes of case.

• (3) No order shall be made ... 100(1) of this Act unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament; and any regulations made under this Part of this Act (except regulations made ... by virtue of an Order under section 100(2)) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

• (3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) No recommendation shall be made to the Governor of Northern Ireland in Council to make an Order under subsection (2) of section 100 of this Act unless a draft thereof has been laid before the Parliament of Northern Ireland and has been approved by resolution of each House of Parliament of Northern Ireland; and an Order under that subsection which authorises the making of regulations may make provision for the laying of such regulations before the Parliament of Northern Ireland and for their annulment in such circumstances as may be specified in the Order.

• (5) A definition or description of a class of vehicles for the purposes of any order or regulation under this Part of this Act may be framed by reference to any characteristic of the vehicles or to any other circumstances whatsoever.

• (6) Before making any order or regulations under this Part of this Act the Minister shall consult with such representative organisations as he thinks fit.

Application to the Crown and exemption for police and fire brigade

102

• (1) Subject to subsection (2) of this section, this Part of this Act shall apply to vehicles and persons in the public service of the Crown.

• (2) This Part of this Act shall not apply in the case of motor vehicles owned by the Secretary of State for Defence and used for naval, military or air force purposes or in the case of vehicles so used while being driven by persons for the time being subject to the orders of a member of the armed forces of the Crown.

• (3) Where an offence under this Part of this Act is alleged to have been committed in connection with a vehicle in the public service of the Crown, proceedings may be brought in respect of the offence against a person nominated for the purpose on behalf of the Crown; and, subject to subsection (3A) below, where any such offence is committed any person so nominated shall also be guilty of the offence as well as any person actually responsible for the offence (but without prejudice to proceedings against any person so responsible).

• (3A) Where a person is convicted of an offence by virtue of subsection (3) above—

• (a) no order may be made on his conviction save an order imposing a fine,

• (b) payment of any fine imposed on him in respect of that offence may not be enforced against him, and

• (c) apart from the imposition of any such fine, the conviction shall be disregarded for all purposes other than any appeal (whether by way of case stated or otherwise).

• (4) This Part of this Act shall not apply in the case of motor vehicles while being used for police or fire brigade fire and rescue authority purposes or for or in connection with the exercise of any function of the Scottish Fire and Rescue Service or for purposes relating to the functions of Ministry of Defence fire-fighters (as defined in section 16 of the Armed Forces Act 2016).

Interpretation, supplementary provisions, etc., for Part VI

103

• (1) In this Part of this Act—

• “AETR” has the meaning given by section 97ZA(12) of this Act;

• “agriculture” has the meaning assigned by section 109(3) of the Agriculture Act 1947 or, in relation to Scotland, section 86(3) of the Agriculture (Scotland) Act 1948;

• “analogue recording equipment” has the meaning given by section 99ZB(9) of this Act;

• “the Community Drivers’ Hours Regulation” means Regulation (EC) No. 561/2006 of the European Parliament and of the Council as amended from time to time;

• “contracting ... country” means a country ... which is a contracting party to—the European Agreement concerning the Work of Crews of Vehicles engaged in International Road Transport of 1st July 1970, as amended; ......

• ...

• “copying” and “copies”, in relation to data stored on a driver card or digital recording equipment, is to be construed in accordance with section 99ZA(5) of this Act;

• “digital recording equipment” has the meaning given by section 99ZA(6) of this Act;

• “driver”, “employee-driver” and “owner-driver” have the meaning assigned by section 95(3) of this Act;

• “driver card” has the meaning given by section 99ZA(6) of this Act;

• “electronic copy” of data has the meaning given by section 99ZA(6) of this Act;

• “employer”, in relation to an employee-driver, means the employer of that driver in the employment by virtue of which that driver is an employee-driver;

• “the EU Tachographs Regulation” has the meaning given by section 97(7) of this Act; the European Agreement concerning the Work of Crews of Vehicles engaged in International Road Transport of 1st July 1970, as amended; orthe EEA agreement;

• “field test” has the meaning given by section 96A(1) of this Act;

• “hard copy” in relation to data stored electronically has the meaning given by section 99ZA(6) of this Act;

• “the applicable Community rules” means— the Community Drivers' Hours Regulation, including the AETR; andthe EU Tachographs Regulation;

• “the domestic drivers’ hours code” has the meaning given by section 96(13) of this Act;

• “officer” has the meaning given by section 99(8) of this Act;

• “prescribed” means prescribed by regulations made by the Minister;

• “recording equipment” has the meaning given by section 97(7) of this Act;

• “record sheet” includes a temporary sheet attached to a record sheet in accordance with Article 37(2) of the EU Tachographs Regulation;

• ...

• “transport undertaking” has the meaning given in the Community Drivers’ Hours Regulation;

• “working day”, in relation to any driver, means—

• (a) any period during which he is on duty and which does not fall to be aggregated with any other such period by virtue of paragraph (b) of this definition; and

• (b) where a period during which he is on duty is not followed by an interval for rest of not less than eleven hours or (where permitted by virtue of section 96(4)(b) of this Act) of not less than nine and a half hours, the aggregate of that period and each successive such period until there is such an interval as aforesaid, together with any interval or intervals between periods so aggregated;

• “working week” means, subject to subsection (5) of this section, a week beginning at midnight between Sunday and Monday:

and any expression not defined above which is also used in the Act of 1960 has the same meaning as in that Act.

• (2) For the purposes of this Part of this Act a director of a company shall be deemed to be employed by it.

• (3) In this Part of this Act references to a person driving a vehicle are references to his being at the driving controls of the vehicle for the purpose of controlling its movements, whether it is in motion or is stationary with the engine running.

• (4) In this Part of this Act references to a driver being on duty are references—

• (a) in the case of an employee-driver, to his being on duty (whether for the purpose of driving a vehicle to which this Part of this Act applies or for other purposes) in the employment by virtue of which he is an employee-driver, or in any other employment under the person who is his employer in the first-mentioned employment; and

• (b) in the case of an owner-driver, to his driving a vehicle to which this Part of this Act applies for the purposes of a trade or business carried on by him or being otherwise engaged in work for the purposes of that trade or business, being work in connection with such a vehicle or the load carried thereby.

• (5) A traffic commissioner may, on the application of an owner-driver or of the employer of an employee-driver, from time to time direct that a week beginning at midnight between two days other than Sunday and Monday shall be, or be deemed to have been, a working week in relation to that owner-driver or employee-driver; but where by virtue of any such direction a new working week begins before the expiration of a previous working week then, without prejudice to the application of the provisions of this Part of this Act in relation to the new working week, those provisions shall continue to apply in relation to the previous working week until its expiration.

• (6) In section 98(2)(e) of this Act “a small goods vehicle” means a goods vehicle which has a plated weight of the prescribed description not exceeding 3500 kilograms or (not having a plated weight) has an unladen weight not exceeding 1525 kilograms; but the Minister may by regulations direct that the foregoing provisions of this subsection shall have effect, in relation to either or both of those sections—

• (a) with the substitution for either of the weights there specified of such other weight as may be specified in the regulations;

• (b) with the substitution for either of those weights or for any other weight for the time being specified as aforesaid of a weight expressed in terms of the metric system, being a weight which is equivalent to that for which it is substituted or does not differ from it by more than five per cent. thereof.

• (7) An offence under this Part of this Act may be treated for the purpose of conferring jurisdiction on a court (but without prejudice to any jurisdiction it may have apart from this subsection) as having been committed in any of the following places, that is to say—

• (a) the place where the person charged with the offence was driving when evidence of the offence first came to the attention of a constable or vehicle examiner;

• (b) the place where that person resides or is or is believed to reside or be at the time when the proceedings are commenced: or

• (c) the place where at that time that person or, in the case of an employee-driver, that person’s employer or, in the case of an owner-driver, the person for whom he was driving, has his place or principal place of business or his operating centre for the vehicle in question.

In this subsection “vehicle examiner” means an officer within the meaning of section 99 of this Act.

• (8) The enactments specified in Schedule 11 to this Act shall have effect subject to the amendments there specified.

• (9) Any order made under section 166(2) of this Act appointing a day for the purposes of any of the provisions of this Part of this Act may contain such transitional provision as the Minister thinks necessary or expedient as respects the application of any particular provision of this Part of this Act to a working week or working day falling partly before and partly after the date on which that provision comes into operation.

• (10) A reference in this Part of this Act to Annex IB to the EU Tachographs Regulation has effect, until the coming into force of that Annex, as a reference to Annex IB to Council Regulation (EEC) No. 3821/85 on recording equipment in road transport as read with the Community Drivers’ Hours and Recording Equipment Regulations 2007.

Part VII — Inland Waterways

The Board’s waterways

Classification of the Board's waterways

104

• (1) For the purposes of sections 105 to 111 of this Act the inland waterways comprised in the undertakings of the Waterways Board and Canal & River Trust shall be divided into—

• (a) the waterways for the time being specified in Part I of Schedule 12 to this Act, being waterways (in this Part of this Act referred to as “the commercial waterways”) to be principally available for the commercial carriage of freight;

• (b) the waterways for the time being specified in Part II of that Schedule, being waterways (in this Part of this Act referred to as “the cruising waterways”) to be principally available for cruising, fishing and other recreational purposes; and

• (c) the remainder.

• (2) The description contained in the said Schedule 12 of any waterway shall be read subject to any order made by the Minister or, in the case of a waterway in Scotland, the Scottish Ministers for giving greater precision to that description by reference to a map.

• (3) The Minister or, in the case of a waterway in Scotland, the Scottish Ministers may by order transfer any waterway from one Part of the said Schedule 12 to the other Part, remove any waterway from either of those Parts or add to either of those Parts any inland waterway for the time being comprised in the undertaking of the Board or Canal & River Trust which is not for the time being a commercial waterway or a cruising waterway.

• (3A) Canal & River Trust may apply to the Minister for the making of an order under subsection (3).

• (3B) In deciding whether to make an order under subsection (3), the Minister must have regard to the financial position of Canal & River Trust.

• (4) Schedule 13 to this Act shall have effect in relation to the making of any order under subsection (3) of this section, and any such order shall be subject to annulment in the case of an order made by the Minister, in pursuance of a resolution of either House of Parliament in the case of an order made by the Scottish Ministers, in pursuance of a resolution of the Scottish Parliament..

• (5) In subsection (3) of this section references to any waterway include references to any part of that waterway.

Maintenance of the Board's waterways

105

• (1) With a view to securing the general availability of the commercial and cruising waterways for public use, it shall be the duty of the Waterways Board and of Canal & River Trust, in relation to the waterways comprised in their respective undertakings, subject to the provisions of this section—

• (a) to maintain the commercial waterways in a suitable condition for use by commercial freight-carrying vessels; and

• (b) to maintain the cruising waterways in a suitable condition for use by cruising craft, that is to say, vessels constructed or adapted for the carriage of passengers and driven by mechanical power.

• (2) Neither paragraph (a) nor paragraph (b) of subsection (1) of this section shall impose on the Board or Canal & River Trust any duty to maintain a waterway, or any part of a waterway, in a suitable condition for use by any vessel of the kind mentioned in that paragraph unless the dimensions of the vessel (that it to say, its length, width, height of superstructure and draught)—

• (a) correspond to, or are less than, those of a vessel of that kind which customarily used that waterway or part during the period of nine months ending with 8th December 1967; or

• (b) if the waterway or part has been restored or improved since that date, are such as to make it suitable for use on that waterway or part;

but, save as aforesaid, the duty imposed by that paragraph shall extend to any vessel of the kind therein mentioned as respects the dimensions of which paragraph (a) or (b) of this subsection is satisfied.

• (3) If it appears to the Minister that, having regard to any change in the size, design or type of vessel customarily using any commercial waterway or cruising waterway, or any part thereof, or to any other reason the Minister considers relevant to the duty under subsection (1), it is desirable to exercise his powers under this subsection, he may (after consultation with Canal & River Trust) by order substitute for the duty imposed on Canal & River Trust by the foregoing provisions of this section in respect of that waterway or part such duty in respect of the maintenance thereof as he considers appropriate having regard to that change, and may by that order make such incidental or transitional provision as he thinks necessary or expedient in connection therewith.

• (3ZA) Canal & River Trust may apply to the Minister for the making of an order under subsection (3).

• (3ZB) In deciding whether to make any order under subsection (3), the Minister must have regard to the financial position of Canal & River Trust.

• (3A) If it appears to the Scottish Ministers that, having regard to any change in the size, design or type of vessel customarily using any commercial waterway or cruising waterway, or any part of such waterway, it is desirable to exercise their powers under this subsection, they may (after consultation with the Board) by order substitute for the duty imposed on the Board by subsection (1) in respect of that waterway (or part) such duty in respect of the maintenance of such waterway (or part) as they consider appropriate having regard to that change, and may by that order make such incidental or transitional provision as they think necessary or expedient in connection therewith.

• (4) Schedule 13 to this Act shall have effect in relation to the making of any order under subsection (3) or (3A) of this section, and any such order made by the Minister under subsection (3) shall be subject to annulment in pursuance of a resolution of either House of Parliament, and an order made by the Scottish Ministers under subsection (3A) is subject to the negative procedure.

• (5) Section 17 of the Regulation of Railways Act 1873 (which requires the Board to maintain certain inland waterways) shall cease to apply to any inland waterway which on the date on which this section comes into force is comprised in the undertaking of the Board; and any local enactment passed with respect to any such inland waterway, so far as that enactment—

• (a) confers any public or private right of navigation over the waterway; or

• (b) imposes any duty to maintain that waterway for the purpose of navigation (including any duty to supply, or maintain a supply of, water for the waterway for that purpose),

shall cease to have effect.

• (6) If the Board or Canal & River Trust acquire any inland waterway after the date on which this section comes into force any local enactment passed with respect thereto shall, so far as it confers or imposes any such right or duty as is mentioned in paragraph (a) or (b) of subsection (5) of this section, cease to have effect on the date on which the waterway is so acquired.

• (7) Any person who suffers loss by reason of the extinguishment by virtue of subsection (5) or (6) of this section of any private right shall be entitled to be paid by the Board or, as the case may be, Canal & River Trust compensation to be determined, in case of dispute, by the appropriate tribunal; and the tribunal shall, in determining the compensation, take into account any contractual right offered by the Board or, as the case may be, Canal & River Trust in substitution for the right which is extinguished.

• (8) Where by virtue of subsection (5) of this section a statutory right of navigation ceases to be exercisable as respects a waterway of which the Waterways Board or, as the case may be, Canal & River Trust are not the owner, the Board or, as the case may be, Canal & River Trustshall have power to authorise any use of the waterway which would have been authorised by that statutory right.

Enforcement of maintenance duty

106

• (1) If, on an application by any person under this section to the Court of Session, the court determines that there has been, in respect of any waterway, a serious and persistent failure by the Waterways Board to discharge the duty imposed on them by—

• (a) section 105(1), or

• (b) an order made under section 105(3A),

the court may, subject to the provisions of this section, require the Board to remedy that failure; but, save as aforesaid, neither subsection (1) of section 105 nor any order under subsection (3A) of that section shall be construed as imposing any duty or liability enforceable by proceedings before any court to which the Board would not otherwise be subject.

• (2) The fact that proceedings on an application under subsection (1) (referred to in this section as “enforcement proceedings”) are in progress in respect of any waterway or any part of a waterway, or that the court has in any such proceedings imposed any requirement on the Board, shall not prevent the Scottish Ministers from making an order in respect of that waterway or part under section 104(3) or 105(3A); but—

• (a) except as provided in subsection (3) of this section, where such an order is made while enforcement proceedings are in progress, the court shall nevertheless determine those proceedings on the basis of the duty of the Board as it stood when the proceedings were instituted; and

• (b) the making of such an order shall in no case absolve the Board from complying with any requirement which is imposed by the court in any enforcement proceedings.

• (3) If a relevant order is pending at the time when enforcement proceedings are instituted, or if, at any time after enforcement proceedings have been instituted and before the court has imposed any requirement on the Board in the proceedings, the Scottish Ministers notify the Board that they are considering the making of a relevant order and give the court such a certificate as is mentioned in subsection (4)—

• (a) the court shall not, so long as the order is pending, impose any requirement on the Board in those proceedings; and

• (b) if the order is made, the court shall, in determining in those proceedings whether there has been a failure by the Board to discharge their duty, have regard only to the duty (if any) to which the Board are subject in consequence of the making of the order.

• (4) The certificate referred to in subsection (3) is a certificate in writing to the effect that it appears to the Scottish Ministers that the imposition of any requirement on the Board on the basis of their existing duty would result in their incurring substantial expense and that, having regard to their financial position and their duty under section 18 of the Act of 1962 and section 41 of this Act, it would be unreasonable for them to bear that expense without a grant or further grant under section 43 of this Act.

• (5) In subsection (3) “relevant order” means, in relation to any enforcement proceedings, an order under section 104(3) or 105(3A) of this Act in relation to the waterway or part of a waterway which is the subject of the proceedings; and for the purposes of that subsection an order is pending during the period of three months beginning with the day on which the Scottish Ministers notify the Board that they are considering the making of the order and, if before the expiration of that period notice of the proposed order is published under Schedule 13 to this Act, during any further period until the order is made or the Scottish Ministers notify the Board that it will not be made.

• (6) As soon as may be after giving the Board any such notification as is mentioned in subsection (5), the Scottish Ministers shall give notice of that notification in the Edinburgh Gazette.

• (7) For the purposes of this section enforcement proceedings shall be treated as instituted at the time when the summons beginning the proceedings is served on the Board.

Amendments as to general duties of Board

107

• (1) The duty of the Waterways Board under subsection (1) of section 10 of the Act of 1962 to provide services and facilities on the inland waterways owned or managed by them shall extend only to the commercial waterways and cruising waterways.

• (2) It shall be the duty of the Board—

• (a) to secure that each of the inland waterways comprised in their undertaking which is not a commercial waterway or cruising waterway is dealt with in the most economical manner possible (consistent, in the case of a waterway which is retained, with the requirements of public health and the preservation of amenity and safety), whether by retaining and managing the waterway, by developing or eliminating it, or by disposing of it; and

• (b) to secure that the best possible financial return is obtained from any asset of the Board which is not an inland waterway or harbour and is not required in connection with the provision of services and facilities by the Board, whether by exploiting it, by developing it, or by disposing of it.

• (3) Subsection (4) of the said section 10 (which provides that the duties of the Board under that section are not to be legally enforceable) shall apply also to the duty imposed on the Board by subsection (2) of this section.

• (4)

Prevention of nuisance as respects certain waterways

108

• (1) Subject to subsection (3) of this section, any inland waterway in England or Wales comprised in the undertaking of Canal & River Trust which is not a commercial waterway or cruising waterway shall be deemed to be—

• (a) a watercourse for the purposes of section 259 of the Public Health Act 1936; and

• (b) land to which section 215 of the Town and Country Planning Act 1990 applies;

and the provisions of Part III of the Environmental Protection Act 1990, as they apply by virtue of this subsection, may be enforced by a county council as well as by a local authority as defined in that Act, and any local authority within the meaning of the said Act of 1990 (and not only the local planning authority) shall be entitled to enforce the provisions of the said section 215 as it applies by virtue of this subsection.

• (2) Subject to subsection (3) of this section, any inland waterway in Scotland comprised in the undertaking of the Board which is not a commercial waterway or cruising waterway shall be deemed to be—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) land to which section 179 of the Town and Country Planning (Scotland) Act 1997 applies;

and any local authority within the meaning of the said Act of 1997 (and not only the local planning authority) shall be entitled to enforce the provisions of the said section 179 as it applies by virtue of this subsection.

• (3) This section shall not apply to any waterway which has been closed to navigation under any local enactment before the date on which this section comes into force if the use of the waterway has been changed between the passing of that enactment and that date in pursuance of planning permission granted under Part III of the Town and Country Planning Act 1962 or Part II of the Town and Country Planning (Scotland) Act 1947; and and this section shall cease to apply to any waterway if the use thereof is changed after that date in pursuance of such permission as aforesaid.

• (4) This section shall have effect to the exclusion of any provision for similar purposes in any local enactment passed before the date on which this section comes into force in relation to any waterway to which this section applies.

Power of certain bodies to maintain or take over waterways and connected works

109

• (1) Without prejudice to their powers apart from this section, but subject to subsection (3) of this section, the Waterways Board shall have power—

• (a) to enter into an agreement with any body to which this section applies for the maintenance by that body of any inland waterway comprised in the undertaking of the Board which is not a commercial waterway or cruising waterway, or of any part of, or of any works connected with, any such waterway;

• (b) by agreement with any such body, to transfer to it any such waterway, part of a waterway or works as aforesaid belonging to the Board, together with any powers or obligations (whether statutory or otherwise) of the Board in respect thereof;

and any body to which this section applies shall have all such powers as are required to enable it to enter into and carry out any such agreement as aforesaid or as are required to be exercised by it in consequence of any such transfer as is mentioned in this subsection.

• (2) The bodies to which this section applies are as follows—

• (a) a local authority;

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) a public gas supplier within the meaning of Part I of the Gas Act 1986;

• (e) a public electricity supplier within the meaning of Part I of the Electricity Act 1989;

• (h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

and, as respects any particular agreement or transfer, any other body having public or charitable objects which is certified by the Scottish Ministers as a body appearing to them to be capable of discharing the responsibilities falling on the body in consequence of that agreement or transfer.

• (3) Subject to subsection (5) of this section, no such agreement or transfer as is mentioned in subsection (1) of this section shall be made with or to—

• (a) any local authority unless what is to be maintained or transferred—

• (i) is situated in the area of the authority; or

• (ii) though not situated in that area, is so situated that persons residing in that area have convenient access to it;

• (b) Scottish Water unless the Scottish Ministers have consented to the agreement or transfer;

and the powers under this section of Scottish Water shall be exercisable only for the purposes of their water undertaking and with the consent of the Scottish Ministers.

• (4) Any agreement under this section whereby a waterway or part of a waterway is to be maintained by, or transferred to, a body to which this section applies may include provision for securing that the body in question makes the waterway or part available for public use.

• (5) The Board may make an agreement for maintenance or transfer under this section with two or more bodies jointly on such terms as to the sharing of expenses between those bodies and otherwise as those bodies may agree; and, notwithstanding subsection (3)(a)(i) of this section (but without prejudice to subsection (3)(a)(ii) of this section), a local authority may be a party to such an agreement if part of what is to be maintained or transferred is situated in their area and the remainder in the area or areas of one or more other authorities (whether or not local authorities) who are also parties to the agreement.

The Inland Waterways Amenity Advisory Council

110

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .