Section 46     Amendment of procedure for dealing with applications for harbour orders

116.     Section 46 amends paragraph 18 of Schedule 3 to the Harbours Act 1964 so as to give the Scottish Ministers greater discretion to determine whether objections raised to an application for a harbour order should be dealt with by means of a public inquiry, a hearing or by written representations.

Section 47     Amendment of procedure where harbour revision orders are made by the Scottish Ministers of their own motion

117.     Section 47 amends paragraph 28 of Schedule 3 to the Harbours Act 1964, in relation to harbour revision orders made by the Scottish Ministers of their own motion, in the same way as section 46 amends the procedure for 'applied for' harbour orders.

Section 48     Transitional provision for sections 46 and 47

118.     Section 48 ensures that the amendments to the harbour orders procedure will not apply to pre-existing applications.

Section 49     Badges for vehicles used for disabled people: change of terminology

119.     Section 49 changes the word 'institution' to 'organisation' in the legislation relating to the disabled person's badge (known as the Blue Badge Scheme). The change of wording will be reflected on the badge that is affixed to vehicles used for disabled people. The Scottish Executive supported a recommendation, from the Blue Badge review carried out by the Department of Transport. It was felt that "institution" was stigmatising and that "organisation" was preferable.

Section 50     Extension of remit of Bus User Complaints Tribunal

120.     Section 50 extends the remit of the Bus User Complaints Tribunal. The Tribunal currently provides users of local bus services (i.e. those bus services which are available to the general travelling public) with a voice in improving local services by the means of a statutory complaints mechanism, for instance where a bus operator has failed to resolve a complaint in a satisfactory manner. The section extends the remit so as to include scheduled services such as Express and long-distance coach services. This now means that all bus services that are available to the general travelling public are able to be considered.

Section 51     Minor amendments of Transport (Scotland) Act 2001

121.     Section 51(2) amends section 48 of the Transport (Scotland) Act 2001 to enable local authorities to operate quality partnerships, quality contracts and joint ticketing schemes in the area covered by Strathclyde Passenger Transport Authority.

122.     Section 51(3) amends section 54(2) of that Act to ensure that the same physical section of a road cannot be subject to more than one road user charging scheme at the same time.

123.     Section 51(4) amends section 64 of that Act to introduce subsection (1A) to enable the appointment of persons (adjudicators) to determine disputes relating to road user charging and subsection (1B) to provide that local authorities will pay for the adjudicators.

124.     Section 51(5) rectifies a faulty cross-reference within the Transport (Scotland) Act 2001.

125.     Section 51(6) amends section 79(1) of that Act so that any guidance issued by the Scottish Ministers, in relation to local transport strategies, can apply to local traffic authorities as well as to local transport authorities.

126.     Section 51(7) amends section 81(4)(b) of the Transport (Scotland) Act 2001 as a consequence of the changes made to section 64 of that Act as introduced by section 51(4) of this Act.

127.     Section 51(8) amends section 82(1) of that Act so that guidance, under section 79 of the 2001 Act does not have to be issued before a local transport strategy can be prepared by local traffic authorities as well as by local transport authorities.

128.     Section 51(9) amends paragraph 5 of schedule 1 to that Act to enable a charging authority to distribute net proceeds from road user charging to any local traffic authority, local transport authority or other person for the purpose of directly or indirectly facilitating the achievement of the policies in the charging authority's local transport strategy.

PART 4 GENERAL

Section 52     Orders and regulations

129.     Section 52 makes provision about orders and regulations under the Act. Subsection (1) requires them to be made by statutory instrument. Generally, they are subject to annulment (subsection (2)), but subsection (3) specifies some which require to be approved by the Parliament before being made. Orders under section 54 (commencement orders) are not subject to any parliamentary procedure.

Section 53     Interpretation

130.     Section 53 defines "council", "the Commissioner" and "the 1991 Act" for certain purposes of the Act.

Section 54     Short title and commencement

131.     Section 54(1) provides the short title, which is the name by which the Act may be cited.

132.     Subsection (2) deals with commencement. It is for the Scottish Ministers to make provision commencing the Act. Such provision is to be made by order. By virtue of section 52(4)(b), different provision may be made for different purposes.

SCHEDULES

Schedule 1     Further provision about regional Transport Partnerships

133.     Schedule 1 applies various requirements and gives various administrative functions to Transport Partnerships to enable them to operate effectively. They will have some of the characteristics of local authorities and these provisions bring the Transport Partnerships into line with certain requirements of local government legislation.

134.     Paragraphs 1 to 5 apply to Transport Partnerships the rules on the appointment etc of staff that apply to local authorities. Paragraph 1 requires the Transport Partnerships to appoint staff to exercise their functions. Paragraph 2 empowers a Transport Partnership to indemnify its employees. Paragraph 3 applies to Transport Partnerships similar provision for security of money entrusted to their employees as it is already available to local authorities. Paragraph 4 requires employees of the Transport Partnerships to declare potential conflicts of interest. Paragraph 5 makes it an offence for any employee of a Transport Partnership to receive, through the exercise of their duties, any payment or reward other than remuneration and expenses due to them under their contract of employment. This offence is based on the one already applying to local government employees.

135.     Paragraph 6 confers on the Transport Partnerships certain powers related to the acquisition by agreement, compulsory purchase, and development of land. These are based on the powers already available to local authorities and may only be exercised by a Transport Partnership in the exercise of its transport functions.

136.     Paragraph 7 gives Transport Partnerships an additional power to develop land which they had previously acquired under paragraph 6 but no longer need to fulfil the purposes for which it was originally acquired. Whereas the provision at paragraph 6(5) only enables Transport Partnerships to develop land for the purposes of its transport functions, the provisions of paragraph 7 are not so restricted. However, land so developed must be for the use of persons other than the Transport Partnership and the development must be with a view to disposal of the land. Paragraph 8 ensures that the development functions conferred on Transport Partnerships by paragraph 7 cannot be regarded as a function for the purposes of paragraphs 6 and 7 - otherwise this would give Transport Partnerships wide-ranging powers to buy, sell and develop land unrelated to their transport functions.

137.     Paragraph 9 confers on the Transport Partnerships the powers to dispose of land that are already available to local authorities.

138.     Paragraph 10 provides that Transport Partnerships may promote or oppose private legislation in the Scottish Parliament. Sub-paragraphs (2) and (3) provide circumstances where a Transport Partnership can assume responsibility for the promotion or opposition of private legislation that was previously initiated by another body because the transport functions of that body were transferred either to the Transport Partnership or the Scottish Ministers and the latter has then directed the Transport Partnership to continue the promotion or opposition of the private legislation.

139.     Paragraph 11 requires Transport Partnerships to participate in community planning in the same way as various other public bodies.

140.     Paragraph 12 ensures that Transport Partnerships have similar powers to councils to create companies, much in the same manner as, for example, that City of Edinburgh Council created tie (transport initiatives edinburgh).

141.     Paragraph 13 applies various miscellaneous local authority responsibilities to Transport Partnerships. These concern, in particular, provisions on legal proceedings. Sub-paragraph 2 requires each partnership to appoint one of its employees as its proper officer, in line with the existing requirement on local authorities. This post-holder is required for the purposes of legal proceedings.

142.     Paragraph 14 requires Transport Partnerships to prepare, publish and give to the Scottish Ministers, an annual report on the performance of its functions. It also requires Transport Partnerships to give to the Scottish Ministers, on request, any information about the performance of their functions.

143.     Paragraph 15 applies to Transport Partnerships certain of the rules governing finance that already apply to local authorities. Paragraph 11(2) adds Transport Partnerships to the list of bodies to which Part VII (Finance) of the Local Government (Scotland) Act 1973 applies. One consequence of this is that section 14 of the Local Government in Scotland Act 2003 applies Part 1 of that Act to those bodies to which Part VII of the 1973 Act applies. So the provisions of part 1 of the 2003 Act apply to Transport Partnerships: these include, notably, the duty to secure best value (sections 1 and 2).

144.     Paragraph 16 applies to Transport Partnerships various rules governing the entering into of contracts. These rules already apply to local authorities.

145.     Paragraph 17 amends the Ethical Standards in Public Life etc (Scotland) Act 2000 to add the Transport Partnerships to the list of devolved public bodies for which they are to be codes of conduct for their members.

146.     Paragraph 18 enables Transport Partnerships to reimburse observers their expenses.

147.     Paragraph 19 amends the Scottish Public Services Ombudsman Act 2002 to include Transport Partnerships in the list of bodies that the Ombudsman can investigate.

148.     Paragraph 16 amends the Freedom of Information (Scotland) Act 2002 so as to apply to Transport Partnerships the duty on public authorities to disclose information.

Schedule 2     Scottish Road Works Commissioner: further provision

149.     Schedule 2 of the Act sets out further provisions in respect of the Commissioner.

150.     Paragraph 1 relates to the terms and conditions, including pension and other allowances to staff, who have with the consent of the Scottish Ministers, been appointed.

151.     Paragraph 2 places a duty on the Commissioner to prepare, for each financial year and, in accordance with directions given by the Scottish Ministers, an account of income and expenditure which will be sent to the Scottish Ministers. The Scottish Ministers may also direct the time each financial year by which such accounts are to be sent to the Auditor General for Scotland.

152.     Paragraph 3 places a duty on the Commissioner to, at the end of each financial year, give to the Scottish Ministers, and publish, a report on performance during that year. The Commissioner shall also provide the Scottish Ministers with such information about the performance of those functions as may be required.

153.     Paragraph 4 makes the Commissioner subject to the duty to disclose information under the Freedom of Information (Scotland) Act 2002.

Schedule 3     Increase in maximum fines for certain summary offences under the 1991 Act

154.     The schedule lists offences and their maximum fine levels as introduced by section 33.

Schedule 4     Schedule 6A to the New Roads and Street Works Act 1991

155.     The schedule lists fixed penalty offences as introduced by section 34.

Schedule 5     Schedule 6B to the New Roads and Street Works Act 1991

156.     The chart below provides the detail, for illustrative purposes, of the provisions within schedule 5 (as well as schedule 7) in respect of the process associated with the payment of fixed penalties for certain offences.

157.     Schedule 5 paragraph 1(1) provides power for an authorised officer to issue a fixed penalty notice.

158.     Paragraph 2 provides the Scottish Ministers with the power to set via regulation a time limit between an offence being committed and an authorised officer being able to give a fixed penalty notice.

159.     Paragraph 4 provides for the level of the financial limits of the fixed penalty notice and the period within which payment of the notice should be made. The road works authority has a power to extend the period of payment.

160.     Paragraph 5 enables offenders to pay a lesser amount in respect of the fixed penalty notice if they make an earlier payment.

161.     Paragraph 7 enables a person in receipt of a fixed penalty notice to request a hearing in respect of the offence for which they have been given notice provided that that request is made within 29 days of receipt of the notice. The request must be made in writing to the designated person at the address shown on the fixed penalty notice. The road works authority will hold the meeting and the procurator fiscal will be notified that a hearing is to be held. The period between a person requesting a hearing and being notified of the hearing's decision will not count towards the 29 days for the payment of the penalty.

162.     Paragraph 8 provides for a power of the road works authority to withdraw notices, in cases where they have been erroneously issued or consider there are extenuating circumstances. Sub-paragraph (3) provides that a road works authority is bound to consider any representations made by or on behalf of a person given a notice, and that they must decide in all circumstances whether to withdraw the notice.

163.     Paragraph 9 ensures that where proceedings have commenced for an offence, in respect of which a fixed penalty notice has been given, that the fixed penalty notice is to be treated as withdrawn. This means that a person may be prosecuted for an offence but in such a circumstance cannot also be punished for non-payment of the fixed penalty notice associated with that offence.

164.     Paragraph 10 provides for the recovery of unpaid fixed penalty fines. After the expiry of 29 days the road works authority is able to enforce the unpaid penalty as if it were an extract registered decree arbitral. In practice this means that the unpaid penalty can be recovered in the same way as a sum of money due under a civil court decree.

165.     Paragraph 11 provides a mechanism under which disputes as to whether or not a fixed penalty has been paid or a hearing sought within the period for paying can be resolved by the courts. Sub-paragraph (1) enables a person who is in dispute with a road works authority to apply to the sheriff by summary application for a declaration that the fixed penalty cannot be enforced under paragraph 10 either because the fixed penalty has been paid or a request for a hearing has been made within the period for paying.

166.     Paragraph 11(2) provides that the sheriff may declare that the person has or has not paid the penalty or requested a hearing within the period for paying and that the fixed penalty is or is not enforceable under paragraph 10.

167.     Paragraph 12 permits the road works authorities to retain a proportion of the monies raised from the application of fixed penalty notices raised to cover their costs in administering the fixed penalty notice process. All surplus monies will revert to the Scottish Ministers.

168.     Paragraph 13 provides the Scottish Ministers with powers to make regulations prescribing the circumstances in which a fixed penalty notice may not be given and the methods for the payment of penalties.

169.     Paragraph 14 allows the Scottish Ministers to issue or approve a code of practice giving guidance to road works authorities and their authorised officers as to the performance of their functions in relation to fixed penalty notices.

170.     The schematic above provides the detail, for illustrative purposes, of the provisions within schedule 5 in respect of the process associated with payment of fixed penalties for certain offences.

Schedule 6     Schedule 8A to the Roads (Scotland) Act 1984

171.     The schedule lists fixed penalty offences introduced by section 37.

Schedule 7     Schedule 8B to the Roads (Scotland) Act 1984

172.     Schedule 7 contains similar provisions to those contained at schedule 5.

NEW ROAD AND STREET WORKS ACT 1991 PART IV ROAD WORKS IN SCOTLAND

(NB THIS TEXT IS PROVIDED FOR GUIDANCE ONLY AND ACCURACY IS NOT WARRANTED)

KEY

New text inserted = this is new text inserted by the Act

Text deleted or repealed =this is existing text which has been deleted or repealed

Introductory provisions

107. Roads, road works and undertakers.

(1) In this Part a "road" means any way (other than a substitute road made under section 74(1) of the [1984 c. 54.] Roads (Scotland) Act 1984 or a waterway) whether or not there is over it a public right of passage and whether or not it is for the time being formed as a way; and the expression includes a square or court, and any part of a road.

(2) Where a road passes over a bridge or through a tunnel, references in this Part to the road include that bridge or tunnel.

(3) In this Part "road works" means works for any purposes other than roads purposes, being works of any of the following kinds executed in a road in pursuance of a statutory right or with permission granted under section 109—

(a) placing apparatus, or

(b) inspecting, maintaining, adjusting, repairing, altering or renewing apparatus, changing the position of apparatus or removing it,

or works required for or incidental to any such works (including, in particular, breaking up or opening the road, or any sewer, drain or tunnel under it, or tunnelling or boring under the road).

(4) In this Part "undertaker" in relation to road works means the person by whom the relevant statutory right is exercisable (in the capacity in which it is exercisable by him) or a person having permission under section 109 to execute road works, as the case may be.

(5) References in this Part to the undertaker in relation to apparatus in a road are to the person entitled, by virtue of a statutory right or a permission granted under section 109, to carry out in relation to the apparatus such works as are mentioned in subsection (3); and references to an undertaker having apparatus in the road, or to the undertaker to whom apparatus belongs, shall be construed accordingly.

108. The road works authority and other relevant authorities.

(1) In this Part "the road works authority" in relation to a road means, subject to the following provisions—

(a) if the road is a public road, the roads authority, and

(b) if the road is not a public road, the road managers.

(2) In the case of a road for which the Secretary of State is the roads authority but in relation to which a local roads authority acts as his agent under section 4 of the Roads (Scotland) Act 1984, the local roads authority shall be regarded as the road works authority for the purposes of section 112 section 112B (duty to enter certain information in the Scottish Road Works Register) and sections 113 to 119 (advance notice and co-ordination of works).

(3) Subsection (1)(b) has effect subject to section 146 as regards the application of this Part to prospective public roads.

(4) In this Part the expression "road managers", used in relation to a road which is not a public road, means the authority, body or person liable to the public to maintain or repair the road or, if there is none, any authority, body or person having the management or control of the road.

(5) The Secretary of State may by regulations make provision for exempting road managers from provisions of this Part which would otherwise apply to them as the road works authority in relation to a road.

(6) References in this Part to the relevant authorities in relation to any road works are to the roads authority and also—

(a) where the works include the breaking up or opening in the road of a sewer vested in the local authority, that local authority;

(b) where the road is carried or crossed by a bridge vested in a transport authority, or crosses or is crossed by any other property held or used for the purposes of a transport authority, that authority; and

(c) where in any other case the road, not being a public road, is carried or crossed by a bridge, the bridge authority.

109. Permission to execute road works.

(1) A road works authority may grant permission in writing, subject to such reasonable conditions as they consider appropriate, to persons to whom this section applies—

(a) to place, or to retain, apparatus in a road, and

(b) thereafter to inspect, maintain, adjust, repair, alter or renew the apparatus, change its position or remove it,

and to execute for those purposes any works required for or incidental to such works (including, in particular, breaking up or opening the road, or any sewer, drain or tunnel under it, or tunnelling or boring under the road).

(2) A person to whom permission has been granted under this section to execute works may do so without obtaining any consent which would otherwise be required to be given—

(a) by any other relevant authority in its capacity as such, or

(b) by any person in his capacity as the owner of apparatus affected by the works;

but without prejudice to the provisions of this Part as to the making of requirements by any such authority or person or as to the settlement of a plan and section and the execution of the works in accordance with them.

(3) The granting of permission under this section to a person does not dispense that person from obtaining any other consent, licence or permission which may be required; and it does not authorise the installation of apparatus for the use of which the licence of the Secretary of State is required unless and until that licence has been granted.

(4) This section applies to persons who are described in one or more of the following paragraphs—

(a) persons of a prescribed class,

(b) persons carrying out works of a prescribed class,

(c) persons carrying out works in a prescribed area.

(5) The conditions referred to in subsection (1) may include conditions as to—

(a) the payment of fees,

(b) the future cessation or withdrawal of the permission, and

(c) indemnification of the authority against claims arising out of what is permitted.

(6) Before granting permission under this section the road works authority shall give not less than 10 working days' notice to each of the following—

(a) where the works are likely to affect a sewer vested in a local authority, to that authority,

(b) where the works are to be executed in a part of a road which is carried or crossed by a bridge vested in a transport authority, or crosses or is crossed by any other property held or used for the purposes of a transport authority, to that authority,

(c) where in any other case the part of the road in which the works are to be executed is carried or crossed by a bridge, to the bridge authority,

(d) to any person who has given notice under section 113 (advance notice of certain works) of his intention to execute road works which are likely to be affected by the works to which the permission relates, and

(e) to any person having apparatus in the road which is likely to be affected by the works; but a failure to do so does not affect the validity of the permission.

(7) Where permission has been granted under section 61 of the [1984 c. 54.] Roads (Scotland) Act 1984 in respect of apparatus and the road works authority consider that permission could be granted under this section in respect of that apparatus, they may cancel the permission granted under section 61 of the 1984 Act and, if they cancel that permission, they shall substitute for it permission granted in accordance with subsection (1) above.

(8) The works referred to in subsection (1) above do not include works for road purposes.

110. Prohibition of unauthorised road works.

(1) It is an offence for a person other than the road works authority—

(a) to place apparatus in a road, or

(b) to break up or open a road, or a sewer, drain or tunnel under it, or to tunnel or bore under a road, for the purpose of placing, inspecting, maintaining, adjusting, repairing, altering or renewing apparatus, or of changing the position of apparatus or removing it, otherwise than in pursuance of a statutory right or in accordance with a permission granted under section 109. (2) A person committing an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(3) This section does not apply to—

(a) works for which consent or permission has been given under the Roads (Scotland) Act 1984 by a roads authority,

(b) works for road purposes, or

(c) emergency works of any description.

(4) If a person commits an offence under this section, the road works authority may—

(a) in the case of an offence under subsection (1)(a), direct him to remove the apparatus in respect of which the offence was committed, and

(b) in any case, direct him to take such steps as appear to them necessary to reinstate the road or any sewer, drain or tunnel under it.

If he fails to comply with the direction, the authority may remove the apparatus or, as the case may be, carry out the necessary works and recover from him the costs reasonably incurred by them in doing so.