Part 2 – Low Emission Zones
Overview
22.Part 2 of the Act introduces the concept of low emission zone schemes. A low emission zone scheme is a scheme under which individuals driving specified types of vehicles which fail to meet specified emission standards will be prohibited from driving those vehicles within a designated geographical area. Where a person breaches this rule, a penalty charge will be payable unless the vehicle is exempt. Exemptions will be set out in regulations but are likely to include, for example, emergency services vehicles. The scheme itself may also make provision for the local authority operating the scheme to grant exemptions in certain circumstances.
23.It is for local authorities to put in place low emission zone schemes where they consider it appropriate to do so. Typically, the primary goal of a low emission zone scheme is to improve air quality. Local authorities will also be able to join with neighbouring local authorities to create a combined scheme if they wish. A local authority which wishes to put in place a low emission zone scheme will need to carry out local consultation and obtain Ministerial approval before doing so.
24.The Act also makes provision about a number of other matters relating to the operation of low emission zone schemes: for example, the installation of signs and cameras, the potential creation of offences in connection with the enforcement of schemes, accounting requirements, and the ability to review the effectiveness of a scheme. In addition, it provides a grace period in relation to a zone so that those wishing to drive within it have an opportunity to upgrade their vehicle to a less polluting model (either by replacing it or having it modified) before penalty charges begin to be applied.
Chapter 1 – Effect of a low emission zone scheme
25.Section 6 of the Act restricts the driving of vehicles within low emission zones. Where a low emission zone scheme is in place, its terms must be complied with; subject to the terms of the scheme (which will make provision about matters such as the types of vehicles covered by the scheme, and its hours of operation), only vehicles which are at least at the level of the specified emission standard, or which are covered by an exemption, may be driven on roads within the zone. Where anyone drives on a road within a zone in contravention of subsection (1), a penalty charge will become payable.
26.The specified emission standard will be set by the Scottish Ministers by regulations under section 6(4)(a), following consultation with appropriate persons. It is likely that this will be set by reference to what are known as the “Euro standards” (for example, Euro 6 for diesel). Section 128 is also relevant here as it allows different provision to be made for different purposes. Accordingly, a different standard could be set for diesel vehicles compared to petrol ones.
27.Exemptions will be set by the Scottish Ministers by regulations under section 6(4)(b), in particular, by reference to their construction or use. This would allow Ministers to provide, for example, that emergency service vehicles are to be exempt. The local authority which operates the low emission scheme will also be able to grant exemptions of a time-limited nature under section 17 if the scheme makes provision to this effect. This would allow for exemptions to be granted in cases where it is not appropriate for the vehicle to benefit from a blanket exemption but there are particular circumstances in which it ought to be exempt for a limited period.
28.The Scottish Ministers will also be able to specify by regulations the amount of the penalty charge (section 6(4)(c)), following consultation with person whom the Scottish Ministers consider appropriate. Again, this power is subject to section 128 which provides that different provision may be made for different purposes, so this power could be exercised so as to specify different levels of penalty charge depending on, for example, the class of vehicle or the emission standard of the non-compliant vehicle, or whether there are repeated contraventions. In addition, the power includes the ability to make provision for discounts for early payment, or surcharges for non-payment.
29.Section 6(3) deals with the possibility of a non-compliant vehicle passing a number of different enforcement cameras on one journey through a low emission zone. This provides that these infractions are to be dealt with together. Provided that the contraventions occur on the same day, in the same zone, using the same vehicle, and provided that the person who is liable to pay the penalty in respect of the vehicle is also the same in respect of the infractions, only one penalty will be payable.
30.In most instances, the person who is liable to pay the penalty will be the vehicle’s registered keeper (see section 7(4)). However, Ministers may by regulations provide for it to be payable by someone else in specified circumstances: for example, by stipulating that a penalty incurred in respect of a hire car (including a “car club” car) is to be paid by the person who hired the car. If such provision is made, the final limb of the single penalty rule in section 6(3) would ensure that a subsequent hire car driver does not benefit from a penalty paid by someone else who hired the same car earlier in the day. The Scottish Ministers are required to consult with such persons as they consider appropriate prior to making regulations under section 7(4)(b).
31.The restriction in section 6 relates to driving on a road within a zone. Accordingly, a vehicle which is parked would not be issued with a penalty. In addition, section 7 requires a record to be produced from an approved device (such as automatic number-plate recognition cameras) and a record of the vehicle’s emission standard issued by the Secretary of State (in the guise of the DVLA), or by another source specified in regulations made by the Scottish Ministers. Accordingly, a penalty could not be issued to a parked car by an attendant on the basis of a deduction that a parked car within the zone which breaches the emission standard must have been driven within the zone prior to parking. Rather, penalties will need to be sent out by post on the basis of camera records in a similar fashion to speeding tickets.
32.In addition, as the rule is about driving on a road within a zone, movement of vehicles which occurs within a zone but not on a road (for example, moving from one space within a car park to another one) would not incur a penalty. Section 6 should be read in conjunction with, in particular, sections 14(1) and (3) which relate to the requirement for a zone to specify the roads forming part of it. There is a prohibition on the inclusion of what are known as “special roads” (usually motorways).
33.Section 7(2) makes provision for a record obtained from the Secretary of State, or from another source specified in regulations made by the Scottish Ministers, to be conclusive as to whether a vehicle met the emission standard on the date and time captured by an approved device.
34.This provision ensures, firstly, that the Scottish Ministers have the power to make regulations prescribing the holder of a database or databases other than those held by the Secretary of State as the source of the record certifying the vehicle’s emission standard. This power can be used in the event that the records held by the Secretary of State cannot confirm the emission standard of particular vehicles caught by the low emission zone scheme, for example foreign vehicles. Also, the provision ensures that retrofitted vehicles which are covered by the low emission zone scheme, but which have been adapted to meet the emission standard by the date and time they have been captured by the approved device, are not erroneously issued with a penalty charge.
35.Penalty charges are to be paid, in accordance with section 7(4), to the local authority which issued the penalty charge notice. What the local authority then does with those proceeds is subject to sections 14(2) and 27. Essentially, joint schemes must provide for the proceeds to be shared between the local authorities concerned. Proceeds must also be ring-fenced for specified purposes.
36.Section 8 allows the Scottish Ministers to make further provision, by way of regulations following consultation with appropriate persons, about the enforcement of low emission zone schemes to ensure that they operate effectively. In particular, this power can be used to set out the rules which will apply to penalty charge notices (such as the form they take, the time allowed for payment, what happens when a person requests an internal review of a ticket or appeals it to an external adjudicator, etc.).
37.This section also allows offences to be created in relation to enforcement. The maximum penalty that any such offences may provide for is level 5 on the standard scale (currently £5,000). In addition, a number of existing offences may be relevant to the enforcement of low emission zone schemes. For example, under sections 42 and 43 of the Vehicle Excise and Registration Act 1994, it is an offence to fail to affix a registration plate, to obscure it, or to render it not easily distinguishable. Under section 44 of that Act, it is an offence to forge a registration document or mark, or to fraudulently alter, use, lend or allow the use of it. Vandalism of enforcement cameras would also already constitute an offence.
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.
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.
Chapter 4 – General
84.Section 32 requires local authorities to have regard to any guidance issued by the Scottish Ministers about the exercise of functions conferred by Part 2 of the Act or any regulations made under it.
85.Section 33 sets out definitions for a number of terms used within Part 2.
