Chapter 2 – Creation and modification of a low emission zone scheme
Process
38.Sections 9 to 13 deal with the process involved in making, amending or revoking a low emission zone scheme.
39.Under section 9, a low emission zone scheme can relate to all or just part of a local authority’s area. Two or more local authorities can also join together to create a joint scheme. Where a scheme is made jointly, the local authorities concerned must act jointly in relation to it in all respects. This would not preclude them from agreeing upon a division of labour in terms of how the scheme is run, but they would need to reach agreement about, for example, any proposal to amend or revoke the scheme. In the unlikely event that they were to reach a stalemate, this could be resolved by means of the procedure set out in sections 30 and 31.
40.Section 10 provides that the making, amendment or revocation of a low emission zone is ineffective unless it has first been approved by the Scottish Ministers. Ministers are also able to make adjustments to a proposed scheme when granting their approval rather than only being able to approve or reject it in its entirety. It will then be for the local authority to decide whether to proceed with making, amending or revoking of the scheme in line with the approval that they receive. There is also provision allowing consultation to take place as part of the approval process. Section 10(2) sets out that when seeking approval of the Scottish Ministers for a proposal, the local authority must provide a statement setting out the details of the consultation it has undertaken, and how it has taken account of any representations received during the course of that consultation. The Scottish Ministers must take this statement into account during the approval process.
41.Before a local authority takes the step of submitting a proposal to the Scottish Ministers, section 11 requires them to consult with a number of specified bodies or representatives of particular interest groups. A local authority may also consult anyone else whom it considers appropriate to consult, and the Scottish Ministers may also extend the mandatory consultees by way of regulations.
42.In cases where a local authority proposes to make, amend or revoke a low emission zone scheme, section 12 allows that local authority or the Scottish Ministers to appoint a reporter to carry out an examination of the proposal and prepare a report of this examination. Section 12(3) gives the reporter scope to determine how the examination is carried out. The reporter has wide discretion in this regard and while section 12(3) lists a public inquiry, a hearing or consideration of written representations as examples of how the reporter may choose to exercise that discretion, these are not the only options available. Section 12(4) specifies that where there is a hearing or inquiry, subsections (3) to (5) of section 210 of the Local Government (Scotland) Act 1973 (provisions relating to local inquiries) apply. These subsections, as applied, deal with the giving of notice of the time and place of an inquiry or hearing, and requirements to attend and produce evidence. Section 12(5) prevents a proposal from going ahead until the examination is completed.
43.Section 12(6) gives the Scottish Ministers power to make further provision in regulations on these examinations. This is a wide and general power, but section 12(7) provides some examples of the matters the regulations may cover. These include: who may be appointed to carry out an examination; procedures to be followed, particularly around the representations to be taken into consideration, who may appear at a hearing or inquiry, procedures for conducting a hearing or inquiry, and pre and post examination procedures; financial aspects (including remuneration, costs and expenses); and the form, content and publication requirements in respect of any report.
44.The Scottish Ministers have the power, under section 13, to make regulations setting out additional rules about the procedures to be followed in relation to the making, amendment or revocation of low emission zone schemes. This might include, for example, setting down rules about how consultation is to take place, and how decisions to make, alter or revoke a scheme must be publicised. The form of the scheme itself may also be prescribed.
Content
45.Sections 14 to 19 relate to the content of a low emission zone scheme.
46.Section 14 sets out what a low emission zone scheme must contain. It must specify the zone to which it relates. This must be specified as both a geographical area and by reference to the roads which comprise part of the zone. While a penalty notice is only payable in respect of driving on the roads within the zone, it is important that the zone itself includes more than just the roads, as certain provisions (such as section 15) depend on whether a person lives within the zone. The specification of roads is subject to section 14(3) which provides that a special road or a private road cannot be included within the zone. Special roads are usually motorways but also include, for example, the Edinburgh bypass. However, a trunk road for which the Scottish Ministers are the traffic authority may be included as part of a zone (provided Scottish Ministers grant their approval to the proposed scheme).
47.Section 14(1) also allows local authorities to set the scope of their low emission zone scheme by applying it only to certain types of vehicle (which must be specified by reference to the vehicle’s construction) rather than all vehicles, subject to any national exemptions under section 6(4)(b), and any time-limited exemptions under section 17. This approach provides the local authorities with the flexibility to include only the types of vehicle where the scientific evidence supports the benefits to be obtained from the specific inclusion of those vehicles within the low emission zone scheme.
48.A low emission zone scheme must also specify the date on which it comes into effect (which need not be the same day as the day the scheme is made). The objectives of the scheme must be specified too and, under subsection (4), must incorporate two mandatory objectives which focus on contributing towards meeting Scottish air quality objectives and Scottish climate change emission reduction targets. The scheme must also make provision about the grace periods which will apply under it (as to which, see sections 15 and 16). Where it is a scheme made jointly between more than one local authority, it must also make provision about the apportionment of the proceeds of penalty charges.
49.Much as regulations can do, schemes may make different provision for different purposes or areas. This would allow, for example, the scheme to be brought into force in relation to particular types of vehicle on a different date.
50.Sections 15 and 16 deal with grace periods. A grace period is a period during which breach of section 6(1) will not result in a penalty charge becoming payable.
51.A grace period can last for a different length of time depending on the individual concerned: a longer period is allowed for residents of the zone. To be eligible for the residents’ grace period, the vehicle in question must be registered to an individual (not a company, etc.) and the address which appears on the DVLA’s records for the vehicle must be a residential property (not business premises) within the zone.
52.For non-residents, the grace period must be between one and four years, running from the date of the scheme coming into effect. The grace period for residents will continue to run at the end of the standard grace period for up to two years.
53.The grace period must also take account of the possibility that a low emission zone will only cover certain vehicle types (by reference to their construction).
54.Section 16 deals with the more unusual cases which might arise in relation to grace periods. Ordinarily, a scheme will be set up from scratch in an area which has not had a zone before, and the position will be straightforward. However, there may be times where a road has already been the subject of a low emission zone scheme. For example, two neighbouring local authorities might have their own schemes but decide to revoke those individual schemes and replace them with one combined scheme. Alternatively, a road may have recently formed part of a zone, only to have been amended out of it and then subsequently included in a different zone soon after. In each of those cases, the road has already benefitted from a grace period in the recent past. Section 16(1) therefore provides for such cases.
55.The section is framed so as to cover both cases where the previously-zoned roads were zoned in the recent past. It also covers cases where at the point of the proposed scheme being put forward, continue to form part of a zone – but with the expectation being that they will soon cease to form part of that particular zone. This latter case would most likely apply in the example of two local authorities replacing individual zones with one joint one, as it is likely that the applications for revocation and for the new zone would be proceeding in tandem so as to avoid any gap in operation.
56.Under section 16(1), a recently-zoned road will not be subject to the normal grace period rules: it has already had the benefit of those. For these purposes, “recently-zoned” means that the road formed part of a zone within 12 months of the proposed new zone coming into effect.
57.A recently-zoned road which had already exhausted its grace period and had become chargeable will become subject to the penalty regime immediately. This rule is applied separately in relation to residents and non-residents, so the determining factor is whether it was chargeable for that category of people.
58.If the grace period had been only partly used up for a recently-zoned road, the maximum amount of the grace period which may now be allocated in respect of it is to be reduced accordingly. These rules apply to residents’ grace periods as they apply to standard grace periods.
59.There may also be times where a scheme is amended so as to include new roads. In such cases, a grace period is needed for the newly adopted roads which have not been in a zone in the recent past. That period will need to run from the date those roads were included in the scheme though, rather than the date on which the scheme came into effect. Section 16(6) provides for such cases. The roads already within the zone prior to its amendment continue to be dealt with under section 15.
60.Section 17 allows a local authority to make provision in a low emission zone scheme for the granting of time-limited exemptions for particular vehicles, or types of vehicle, by reference to the vehicle’s use. Where a local authority wishes to take advantage of the ability to grant such exemptions, it must specify in its scheme how it intends to operate the granting of such exemptions. This involves, at minimum, specifying the broad circumstances in which it must, may, or must not grant or renew exemptions, as well as the maximum period for which such exemptions will be granted (which cannot exceed one year). While the broad proposals as to the granting of time-limited exemptions must be set out in the scheme, the precise detail of the exemption will be set out by the local authority when an exemption is granted in respect of a particular vehicle.
61.This power would allow, for example, a local authority to put in place conditions in a scheme which allowed it to grant a time-limited exemption to someone who requires their vehicle to be able to work a night-shift when public transport is not available but who has a low income and cannot afford to replace or improve their vehicle yet. The granting of a time-limited exemption may be appropriate in such a situation as it is not that the person will never be in a position to afford to upgrade to a less polluting vehicle; simply that it is not possible immediately. It would also allow for the possibility of the person’s circumstances suddenly changing, as conditions could be attached as to when the right granted under the time-limited exemption must be relinquished.
62.In addition, section 17 requires local authorities to create a time-limited exemption in respect of any diversion resulting from a temporary road closure which has caused non-compliant vehicles to be unavoidably diverted into a low emission zone. In this scenario, a non-compliant vehicle entering a low emission zone would be exempt from a penalty charge, but only where the vehicle followed strictly to the signed diversion routes. The maximum period for such an exemption, which must be specified in the low emission zone scheme, must be no longer than the length of the road closure which created the diversion.
63.Section 18 specifies that the default position is that a low emission zone operates 24 hours a day, every day of the year – from the moment of coming into effect until the moment of its revocation. However, a local authority may propose different rules as to the hours of operation and, if this included within the proposed scheme, approved and then incorporated in the resulting scheme, those will supplant the default position. For example, a scheme might specify that it will not operate during certain months due to a recurring event which takes place then. It may not be thought necessary for schemes to include provision along those lines though, as section 24 does offer a separate mechanism allowing a scheme to be suspended for events of national or significant local importance.
64.Section 19 allows the Scottish Ministers to make further provision, by regulations, about information that may or must be included in a low emission zone scheme.
