The future management and regulation of roads in Scotland

Introduction

COP26 and the wider climate emergency have brought environmental concerns to the forefront of all public policy decisions. Transport is the sector with the biggest contribution to greenhouse gas emissions and as such, it is not surprising that it has faced criticism that progress is not happening as rapidly as it should. The political context in Scotland has also been a contributing factor.

The Covid19 Pandemic has had a considerable impact on the Transport industry. The first lockdown meant that people were enjoying the lack of cars on the road and the cleaner, quieter environments that this brought with it. Then, when life started to open a bit more, people began to use public transport with caution and turned to the use of private cars more for journeys that were, perhaps, originally made by bus or train.

It is hard to predict whether these behaviour changes will be short-term or persist into the future, which is making Strategic policy decisions increasingly more difficult.

Policy Objectives

Transport policy has long been focused on reducing reliance on the private car use but there are a number of related objectives.

In recent years, policy has had an increased focus on reducing emissions, improving air quality and tackling climate change. These have long featured as an objective in transport policy, but it has been argued in the past that they haven’t been given the priority they deserve. Improving health and wellbeing has also increasingly been seen as an important aspect of transport policy, with initiatives ranging from improving air quality to promoting active travel options that will improve fitness and tackle obesity.

Economic growth is also an important policy objective, not least after the impacts of the pandemic, but there has long been concerns about how this would be achieved alongside transport policy’s objective of reducing reliance on private car use. However, there are now more studies in this area, including some which suggest that improving cycling provision and increasing the number of cyclists will have economic benefits. This is a hotly debated topic.

These objectives could be seen in the Scottish Government and Scottish Green Party Shared Policy Programme. For example, it includes an aim to reduce car kilometres by 20% by 2030 and a commitment to increase the proportion of Transport Scotland’s budget spent on Active Travel initiatives so that by 2024/25, at least £320m or 10% of the total transport budget will be allocated to active travel.

The following sections will look at some specific changes we have seen.

Experimental Orders

There have been recent legislative changes under the Road Traffic Regulation Act 1984 (the 1984 Act), which is likely to result in an increased role for experimental orders (EO’s). This may assist authorities who are considering retaining some of the temporary Spaces for People ‘pop-up’ cycle lanes that were introduced during lockdown.

Consultation in the summer of 2021 from Transport Scotland resulted in new Regulations that came into force in November 2021. These new Regulations amend The Local Authorities' Traffic Orders (Procedure) (Scotland) Regulations 1999.

As a result:

• There will be a simplified procedure for EO’s which will be similar to Temporary Traffic Regulation Orders in that there will be no requirement for consultation and objection prior to them being made;
• There will be a simplified procedure for Permanent Orders which seek to continue the provisions of an EO indefinitely. There are certain conditions which need to be met to qualify for the simplified procedure. For example, the provisions to be reproduced and continued in force need to have been in continuous operation for not less than 6 months;
• The objection process will also work differently. Parties will now have 6 months from the EO coming into force to object to the provisions being continued indefinitely. Whilst easier for Local Traffic Authorities, members of the public may feel aggrieved about the requirement to object within the first six months, particularly when the outcome of any traffic authority monitoring is unlikely to be known at this stage.

Low Emission Zone Schemes

There have been various new measures introduced by the Transport (Scotland) Act 2019 (the 2019 Act). Among those changes, Local Authorities now have powers to make Low Emission Zone (LEZ) schemes. The relevant provisions of the 2019 Act came into force in early 2021, with one set of regulations setting out procedures for making LEZs and another specifying emissions standards and details of the enforcement regime.

• An LEZ scheme will identify the area to which it relates by reference to a map and a list of roads forming part of the zone. It will also have to specify objectives, which must include air quality objectives and meeting climate change emission reduction targets;
• The 2019 Act contains a prohibition on driving vehicles in contravention of an LEZ scheme unless the vehicle meets a specified standard, or an exemption applies. A penalty charge notice can be issued for any contravention and the monies received can only be applied towards facilitating the scheme objectives;
• While LEZs are made by Local Authorities, they need to be approved by the Scottish Ministers. Either the Local Authority or the Scottish Ministers can refer the LEZ to examination which can take the usual forms of written submissions, hearings and inquiry sessions.

Interestingly, the Act provides that no private roads can be included in an LEZ despite their private status only reflecting who is responsible for maintenance. Furthermore, LEZ schemes do not place restrictions on cars that currently meet the standard and it has been suggested that petrol cars registered from 2006 onwards and diesel cars registered from 2015 onwards will generally meet these. Therefore, this doesn’t necessarily reduce reliance on private cars in and of themselves. Alongside this, different grace periods have been granted to residents within the LEZ. These exemptions mentioned above have led to some people suggesting that additional measures alongside an LEZ will be required if real change is to be achieved.

Workplace Parking Licensing Scheme

Another measure from the 2019 Act includes the provisions around the Workplace Parking Licensing Scheme, found under Part 7 of the Act:

• The Scheme enables Local Authorities to make workplace parking licensing schemes which will require a license and fee to be paid by those providing these spaces;
• These places are not just those provided to employees but will include, for example, those available for suppliers, business customers and people attending a course of education or training. The provisions will also apply to arrangements made for off-site parking provision with third-party car parks;
• The Local Authority or authorities can only make the scheme if it appears that it will facilitate the achievement of policies in its Local Transport Strategy. Furthermore, the net proceeds of the scheme can only be applied for the purposes of facilitating the achievement of such policies;
• It will be open to the Local Authority or the Scottish Ministers to refer the scheme for examination;
• Local exemptions will apply based on several factors including specific premises; premises of a specified description; premises with a specified number of parking places or in relation to categories of people or vehicles;
• National exemptions will also apply that are specified in the 2019 Act which include vehicles displaying a blue badge, parking places at hospices and places at NHS premises, although the scheme can specify that places used by those not providing services to the NHS are not exempt from charges.

The Workplace Parking Licensing (Scotland) Regulations 2022 came into force on 4 March 2022 following consultation from June to September 2021. The Regulations make provision in relation to Part 7 of the 2019 Act so that councils may go ahead to introduce them. They make detailed provision in relation to, amongst other things:

• The consultation, reporting and publication requirements on licensing proposals for workplace parking as set out in the 2019 Act;
• The process for examination of the proposals;
• The circumstances in which persons other than the occupier of premises will be liable to obtain a licence and pay the licence charge;
• The process for reviews and appeals of licensing decisions; and
• The ability for schemes to provide for penalty charges and enforcement and appeals in that connection.

Congestion (or Road User) Charging Schemes

Lastly, as we discussed in our webinar in October, it has been argued that for LEZs and similar measures to be effective, they may require other measures alongside them to reduce reliance on car use. We posed the question whether, if it is generally accepted that dramatic change is required, is road user charging the sort of dramatic change that is required? And with the introduction of LEZs and other schemes involving charges, will it be less of a leap to introduce road user charging?

During the recent local government election campaign, the First Minister and the leader of the opposition at Holyrood appeared to express their opposition to road user charging. This suggested that road user charging might be off the agenda for a while. However, Transport Scotland’s Route Map to Achieve a 20 per cent Reduction in Car Kilometres by 2030 suggests that it will commission additional research in 2022 to explore “equitable options for demand management to discourage car use, including pricing”. Road user charging may not be off the agenda after all but the results of the research will be awaited with interest.

Article co-authored by Amy Hammond, Trainee Solicitor at CMS.