Chapter 3 – Operation of a low emission zone scheme
Equipment and signs
65.Sections 20 to 22 deal with the infrastructure necessary within a zone.
66.Section 20 is about the use of equipment: primarily approved devices but also other structures (such as posts on which to mount the devices). Where a low emission zone scheme exists, the traffic authority for the roads concerned may install devices and construct other structures for use in connection with the scheme. This includes the ability to maintain these items once they are in place, and the ability to remove them too. The traffic authority may also sub-contract and authorise someone else to do this on their behalf. The equipment and buildings concerned must be on a road, but the definition of “road” is such that this includes the verges too.
67.This power is granted to the traffic authority: the traffic authority for most roads within a zone will be the local authority operating the zone. However, the traffic authority for trunk roads is the Scottish Ministers. Accordingly, if any trunk roads are included within a zone, it will be Scottish Ministers who are entitled to install any necessary equipment in connection with those roads.
68.Section 21 allows the Scottish Ministers to make regulations about the approval of devices used in connection with low emission zone schemes. This would allow, for example, rules to be made about the equipment that can be used or the process a local authority has to go through to satisfy itself about the suitability of the equipment before using it. The types of devices approved under this power could include automatic number-plate recognition cameras. If regulations make rules about a particular type of device then a device of that type cannot be used unless it has been approved under, or in accordance with a process set out in, the regulations.
69.Section 22 relates to traffic signs but is otherwise in similar terms to section 20. However, it places a duty on the traffic authority to place and maintain signs, rather than simply the ability to do so. It does not deal with the placing of the signs though. The authority for the placing of signs will be found in section 65(1) of the Road Traffic Regulation Act 1984.
70.In addition, section 64 of the Road Traffic Regulation Act 1984 requires traffic signs of a type specified by the relevant authority to be of the size, colour and type prescribed by regulations. Under changes made by section 41 of the Scotland Act 2016, the relevant authority is, in relation to a function within devolved competence, the Scottish Ministers. Accordingly, it will be possible to lay down requirements as to the detail of the signs used in connection with low emission zone schemes by using the existing power in relation to traffic signs.
Information sharing
71.Section 23 outlines the powers to share information, which is required in order to establish if a low emission zone contravention has occurred. This section enables the responsible body (e.g. local authorities) to disclose ‘relevant information’ to another responsible body; the Secretary of State (DVLA); another source specified by Scottish Ministers in regulations as outlined in section 7(2); and the responsible body’s enforcement agent in connection with section 8.
72.Where the information has been disclosed to an enforcement agent, they may only use it or subsequently disclose it as is necessary for or in connection with the enforcement of the low emission zone. Section 23(4)(a) sets out what counts as relevant information where the disclosure by a responsible body is to another responsible body, the Secretary of State (DVLA), or another source specified by Scottish Ministers in regulations under section 7(2). , In respect of those types of disclosure relevant information is the make and model of the vehicle alleged to have been in contravention of the low emission zone, registration details and date of alleged contravention. As regards relevant information disclosed by a responsible body to an enforcement agent, as well as the information set out in section 23(4)(a), under section 23(4)(b) further ‘relevant information’ can then be disclosed to the enforcement agent. This includes the name and address of the registered keeper; the time and location where the vehicle is alleged to have driven within the zone; any record of the alleged contravention of section 6(1) produced by an approved device; records obtained certifying a vehicle’s emission standard (by virtue of section 7(2)); as well as any information or representations provided to the local authority by or on behalf of the registered keeper in connection with any review or appeal.
Temporary suspension for events
73.Section 24 allows a local authority to temporarily suspend a low emission zone scheme to accommodate an event, held in or near the zone, which it considers to be of national importance or significant local importance. It is for a local authority to decide both whether an event meets these criteria and also whether it wishes to exercise its power to suspend all or part of the zone in cases where it is open to it to do so. A local authority might, for example, choose to exercise this power in connection with an event such as the Commonwealth Games or the Ryder Cup being held in Scotland, or a festival which has become of national significance to Scotland, such as the Edinburgh Festival, but also for events of significant local importance.
74.The Act also provides direction on the extent of the ‘temporary’ nature of a suspension. A local authority looking to suspend the operation of an LEZ in whole, or in part, for longer than 7 days would need to obtain the prior approval of the Scottish Ministers.
75.This power is in addition to the ability of the scheme itself (as made or amended) to set different hours of operation from the default position, under section 18. So it would be open to a local authority which plays host to a recurring event of this nature to deal with it instead by seeking approval for a zone which, instead of operating 52 weeks a year, operates with a gap during the known period of the event. However, this power will allow a local authority to accommodate an event which is less predictable in its timing or location. It may also be relied upon by a local authority which does not wish to create a scheme with an automatic suspension in the period of operation built into it.
Finances and reporting, etc.
76.Section 25 provides that the Scottish Ministers may make grants to a person (which covers organisations as well as individuals) or local authorities. The purposes for which grants may be made are: to help with the cost of retrofitting vehicles in order to reduce their emissions, to help with a local authority’s costs in deciding whether to make a low emission zone scheme, operating a scheme, or revoking a scheme. Grants (including grants from the Scottish Ministers to local authorities) can be unconditional or can be subject to specific conditions as to repayment. If a grant is made by the Scottish Ministers to a local authority, any conditions of the grant must be agreed by the Scottish Ministers and the local authority.
77.Section 26 confirms that a local authority has power to incur expenditure in connection with low emission zone schemes, and that they may enter into arrangements such as sub-contracting in relation to matters such as the installation of cameras.
78.Under section 27, the proceeds of a low emission zone scheme may be applied by the local authority only for specified purposes. The first of these is facilitating the achievement of the scheme’s objectives. This would cover elements such as, but not limited to, the back-office administration costs of operating the scheme and implementing air quality and climate change emission mitigation measures. Under section 14(2), a scheme which is made by more than one local authority must set out in the scheme how the proceeds will be apportioned between or among them.
79.Under section 27(b) any monies received from penalty charges can be applied for the repayment of any grant under section 25, but only where any surplus remains from spending to facilitate the achievement of the scheme’s objectives (in short, the purpose in section 27(a) takes precedence over the purpose in section 27(b)).
80.Section 28 allows the Scottish Ministers to make regulations about the accounts that local authorities must keep in connection with their functions in relation to low emission zone schemes.
81.Section 29 requires each local authority which is operating a low emission zone scheme to prepare and publish a report on the scheme, to send a copy of it to the Scottish Ministers, and to lay a copy of the report in the Scottish Parliament. These actions must be completed as soon as reasonably practicable after the end of the financial year (i.e. 31 March). The report must provide specific commentary on the scheme as described in subsection (2) of this section.
Performance of a scheme
82.Sections 30 and 31 allow the performance of a low emission zone scheme to be kept under review by the Scottish Ministers as and when necessary. This could be used if, for example, it appears that a particular scheme is failing to operate as it should or is not achieving very much, or if two local authorities entered into a scheme jointly but have then reached an impasse in terms of agreement on its operation.
83.Section 30 allows the Scottish Ministers to require a local authority to carry out its own review of a low emission zone scheme being operated by it. Section 30 also enables a local authority, at any time and at its own instigation, to carry out a review of the operation and effectiveness of its low emission zone scheme. This review must consider how successful the scheme is being in meeting its objectives, any ways in which it is not succeeding, and any areas in particular within the zone where the scheme is not being successful in meeting its objectives. A review must also include any other assessments or provide any other information which is set out in the direction from Ministers issued under section 30(1). A direction must be published by the Scottish Ministers, as must any amendment or revocation of it. Once the review has been completed, the local authority must prepare a report of its findings and give this to the Scottish Ministers. Following receipt of a report under section 30, section 31 allows the Scottish Ministers to direct a local authority to take such steps as the Ministers specify. Again, the direction must be published by the Scottish Ministers, as must any amendment or revocation of it. However, a direction may only be given by Ministers under this section if they consider that one or more of the criteria set out in paragraphs (a) to (d) of section 30(1) are met.
