Enforcement of parking prohibitions
Imposition of penalty charges – section 58
367.Subsection (1) provides that a penalty charge is payable where a person parks a motor vehicle in contravention of the pavement parking prohibition, the double parking prohibition or the dropped footway parking prohibition.
368.Subsection (2) provides that where a local authority considers that a penalty charge is payable in respect of a contravention occurring in its area, the local authority may issue a penalty charge notice, which must be issued in accordance with regulations to be made by the Scottish Ministers under section 59(1).
369.Under section 64, a local authority may enter into arrangements with another person for that person to issue a penalty charge notice under subsection (2) on behalf of the local authority.
370.A penalty charge notice may be issued by (or on behalf of) a local authority under subsection (2) only on the basis of either: (a) conduct observed by an authorised enforcement officer (see the definition of “authorised enforcement officer” in subsection (6) – discussed below) or (b) a record produced by an “approved device”, meaning a device approved under or in accordance with regulations made by the Scottish Ministers under section 59(1) in connection with the enforcement of the pavement parking, the double parking prohibition or the dropped footway parking prohibition (see definition of “approved device” in subsection (6)).
371.Subsection (4) provides that a penalty charge imposed by a penalty charge notice is payable by the registered keeper of a motor vehicle (meaning the person in whose name the vehicle is registered under the Vehicle Excise and Registration Act 1994 at the time of the contravention to which the penalty charge relates) or, in circumstances that may be specified in regulations made by the Scottish Ministers under subsection (4)(b), by another person who may be specified in those regulations. This regulation making power to specify other persons who are liable to pay a penalty charge is subject to a consultation requirement. It is likely to be used to specify, among other things, that where a hire car is parked in contravention of the pavement parking or double parking prohibition, the driver of the hire car (rather than the car hire company which is likely to be the registered keeper of the vehicle) is responsible for paying the penalty charge.
372.Under subsection (5), the Scottish Ministers have power by regulations (made following consultation) to make provision for or in connection with the amount to be imposed as a penalty charge, which may be used, for example, to prescribe a specific amount that may be imposed by local authorities as a penalty charge, or it could be used to specify a maximum amount that may be imposed as a penalty charge. In addition, the Scottish Ministers may specify in these regulations the discounts or surcharges that may be applied to the amount of a penalty charge, the circumstances in which a surcharge or discount may be applied and the amount of any surcharge or discount that may be applied by a local authority.
373.Under subsection (6), an authorised enforcement officer is a person appointed in connection with the pavement parking or double parking prohibitions by the local authority issuing a penalty charge notice or employed by another person with whom the local authority has entered into arrangements as mentioned in section 64. An authorised enforcement officer is also required to wear a uniform of a type to be determined by the local authority issuing the penalty charge notice (or on whose behalf the penalty charge is issued) and that determination is to be made in accordance with any directions given to the local authority under section 67(1).
Enforcement of parking prohibitions – section 59
374.Subsection (1) confers power on the Scottish Ministers to make regulations making provision for or in connection with the enforcement of the pavement parking, the double parking prohibition and the dropped footway parking prohibition.
375.Subsection (2) sets out examples of the kind of provision that may be made in these regulations. In particular, the regulations may make provision for or about:
the devices that may be approved by the Scottish Ministers for use in connection with the detection of the contravention of a parking prohibitions (these devices are likely to include cameras);
the notification of penalty charges;
timing and manner of payment of a penalty charge;
reviews and appeals in connection with the imposition of penalty charges– it is intended that a right of appeal against the a penalty charge will be available to the First-tier Tribunal for Scotland in certain circumstances following an unsuccessful review;
the manner of enforcement of a penalty charge;
steps that may be taken by (or on behalf of) a local authority following the cancellation of a penalty charge, which may include issuing another penalty charge in respect of the same contravention.
376.The regulations may not confer power to stop motor vehicles (see subsection (3)) but they may create criminal offences to be triable summarily (punishable by a fine of no more than level 5 on the standard scale (currently £5,000) or a lower amount as may be prescribed by the regulations) (see subsection (4)(a)). In addition, the regulations may provide that a penalty charge is not required to be paid, or is to be refunded, where the conduct in respect of which the penalty charge is issued is conduct that is the subject of: criminal proceedings, a fixed penalty notice (within the meaning of section 52(1) of the Road Traffic Offenders Act 1988, issued as an alternative to an offence), or a penalty charge (issued under section 66(1) of the Road Traffic Act 1991 under the decriminalised parking regime which applies in the majority of Scotland’s local authorities) (see subsection (4)(b)).
377.Under subsection (4)(c), the regulations may provide that a record produced by a device that is approved under or in accordance with regulations under section 49(1) is sufficient evidence of the fact that is recorded in that record in the circumstances specified in the regulations.
378.Regulations under subsection (1) are subject to the affirmative procedure where they create a criminal offence and are otherwise subject to the negative procedure – see section 72(3).
Power to install approved devices– section 60
379.Subsection (1) confers power on a traffic authority to install and maintain “approved devices” on a road in connection with the detection of a contravention of the pavement parking prohibition, the double parking prohibition or the dropped footway parking prohibition.
380.If the traffic authority is not the local authority for the area in which a device is to be installed, the traffic authority may enter into arrangements with the local authority under which the local authority installs (or secures the installation of) the device. Alternatively, the traffic authority could retain the duty to place and maintain the devices but enter into arrangements with the local authority (for the area in which the device is to be installed) to assist the traffic authority in relation to the installation and maintenance of the device. This assistance could include the local authority making a financial contribution to the cost of the installation (and maintenance) of the device.
Removal of motor vehicles parked contrary to parking prohibitions – section 61
381.Subsection (1) confers power on the Scottish Ministers to, by regulations, make provision for or about the removal from a road of a motor vehicle which is parked in contravention of the pavement parking, the double parking prohibition or the dropped footway parking prohibition. The regulations will confer power on local authorities (and any person with whom a local authority has entered into arrangements with as mentioned in section 64) to remove such motor vehicles from a road. Note that “road” takes the meaning given by section 151(1) of the Roads (Scotland) Act 1984 (“1984 Act”) (see section 69 of the Act) and includes a “pavement” as defined in this Part. This Part of the Act defines a “pavement” as being a footway or a footpath in terms of section 151(2) of the 1984 Act (see sections 50(4) and 69 of the Act) and section 151(2)(a) and (b) of the 1984 Act defines a footway and a footpath as being a type of road for the purposes of the 1984 Act.
382.Subsection (2) sets out examples of the kind of provision that may be made in regulations under subsection (1) in connection with the removal of motor vehicles, including the notification requirements, storage, return and charges, as well as reviews and appeals processes.
383.Subsection (3) provides that the Scottish Ministers must consult with such persons or organisations as appears to them to be representative of drivers and other road users, and other persons as they consider appropriate before making these regulations.
384.The power under subsection (1) is subject to the negative procedure – see section 128(2).
Moving motor vehicles parked contrary to parking prohibitions – section 62
385.Subsection (1) confers power on the Scottish Ministers to, by regulations, make provision for or about moving a motor vehicle which is parked in contravention of the pavement parking, the double parking or the dropped footway parking prohibition from its position on a road to another position on that road or on another road. The regulations will confer power on local authorities (and any person with whom a local authority has entered into arrangements with as mentioned in section 64) to move such motor vehicles.
386.Subsection (2) sets out examples of the kind of provision that may be made in regulations under subsection (1) in connection with the moving of motor vehicles, including om notification, the charges imposed for moving a vehicle, and the reviews and appeals for moving a vehicle.
387.Subsection (3) provides that the Scottish Ministers must consult with such persons or organisations as appears to them to be representative of drivers and other road users, and other persons as they consider appropriate before making these regulations.
388.The power under subsection (1) is subject to the negative procedure – see section 128(2).
Disposal of removed motor vehicles – section 63
389.Subsection (1) confers power on the Scottish Ministers to, by regulations, make provision for or about the disposal of a motor vehicle which has been removed from a road pursuant to regulations under section 61(1). The regulations will confer power on local authorities (and any person with whom a local authority has entered into arrangements with as mentioned in section 64) to dispose of such motor vehicles in circumstances as may be specified in the regulations.
390.Subsection (2) sets out examples of the kind of provision that may be made in regulations under subsection (1), which include the procedure that must be followed before a vehicle may be disposed of and the manner in which it may be disposed.
391.Subsection (3) provides that the Scottish Ministers must consult with such persons or organisations as appears to them to be representative of drivers and other road users, and other persons as they consider appropriate before making these regulations.
392.The power under subsection (1) is subject to the negative procedure – see section 128(2).
Arrangements in connection with enforcement – section 64
393.This section allows local authorities to enter into arrangements (under a contract) with any person for that person to exercise functions relating to the enforcement of the pavement parking, the double parking and the dropped footway parking prohibitions which are conferred on local authorities by or under sections 58(2), 59(1), 61(1), 62(1) or 63(1) of the Act.
