Local authority powers to require drivers to switch off engines when parked: guidance

LOCAL AUTHORITY POWERS TO REQUIRE DRIVERS TO SWITCH OFF ENGINES WHEN PARKED Guidance Issued Under Section 88 of the Environment Act 1995

PART TWO - ISSUING FIXED PENALTY NOTICES

NOTICES AND PROCESSING - POLICY ISSUES

6.1 Fixed Penalties should be viewed primarily as a deterrent and issued only as a last resort. However local authorities should be aware of the procedure to follow when circumstances demand that a Fixed Penalty Notice be issued.

6.2 The 1995 Act sets out the minimum details to be included in a Fixed Penalty Notice issued in respect of a vehicle emissions offence. The Regulations set out further detail surrounding the issue of Fixed Penalty Notices, including the amount of the Fixed Penalty Notice and the rights of representation open to vehicle users who consider that the issue of a Fixed Penalty Notice is unjustified.

STANDARD FORMAT FOR COMPLETED FIXED PENALTY NOTICE

6.3 Fixed Penalty Notices issued in respect of a vehicle emissions offence must contain:

• the name and address of the person to whom the Fixed Penalty Notice is issued;

• the registered number of the vehicle concerned;

• the date of the offence;

• the monetary amount of the Fixed Penalty to be paid (20.00);

• the address at which the Fixed Penalty may be paid and to where any correspondence relating to the Fixed Penalty Notice may be sent;

• the method or methods by which payment of the Fixed Penalty may be made;

• the period for paying the Fixed Penalty;

• the period during which proceedings will not be brought, being the period of 28 days following the date of the Fixed Penalty Notice or such longer period (if any) as may be specified in the Fixed Penalty Notice; and

• the consequences of the Fixed Penalty not being paid before the expiry of the period for making payment (i.e. the Fixed Penalty will be increased to 40).

6.4 Annex 1 shows the preferred format for a Fixed Penalty Notice which local authorities should adopt.

ISSUING OF NOTICE

Notice issue

6.5 Two versions of the Fixed Penalty Notice should be produced at the time of issue: the top copy should be issued to the vehicle user with all the relevant details completed; the second copy should be kept for the records of the issuing local authority. It is open to local authorities to operate a manual issuing procedure or a computerised one using appropriate technology. Local authorities should generally issue the Fixed Penalty Notice on the spot. This allows the issuing to be witnessed, reducing the possibility of dispute later on.

Customer care

6.6 The person issuing a Fixed Penalty Notice should hand the vehicle user (the driver) the leaflet at Annex 2 which explains that:

• an offence has been committed under section 42 of the Road Traffic Act 1988 insofar as the vehicle being used fails to comply with Regulation 98 of the Road Vehicles (Construction and Use) Regulations 1986, as amended;

• the offence is an existing one but that local authorities have been given the power under the Regulations to carry out enforcement of the offence in an effort to address the growing concerns about pollution and the environment;

• the offence is an absolute one which is not dependent on knowledge by the individual committing the offence, i.e. the vehicle user;

• the vehicle user remains liable for payment of the Fixed Penalty Notice even if he/she is not the vehicle owner (e.g. if the vehicle is being driven under hire or lease);

• the authorised person has the authority to issue a Fixed Penalty Notice in respect of the offence and that this is what he or she is now doing;

• the vehicle user has the right to dispute the liability by requesting a hearing provided the request is received in writing by the authority within 28 days of the date of issue of the Fixed Penalty Notice (any hearing will be heard in court as a prosecution of the alleged offence); and

• failure to pay the Fixed Penalty Notice will result in enforcement action being taken through the courts unless a hearing is pending.

6.7 The local authority official should explain the details which need to be recorded on the Fixed Penalty Notice. He/she should make every effort to obtain all the necessary details from the vehicle user so that the Fixed Penalty Notice can be completed. The local authority official should formally caution the vehicle user at the time of issuing the Fixed Penalty Notice.

ISSUING OF SUBSEQUENT PENALTY NOTICES DURING INITIAL 28 DAY PERIOD

6.8 If a vehicle is found stationary with its engine running unnecessarily on a second (or subsequent) occasion after initial issue of a Fixed Penalty Notice there is no reason why a further Fixed Penalty Notice should not be issued. The offence is absolute and applies equally on every occasion the offence is detected.

PAYMENT METHODS

6.9 Local authorities should ensure that there is a choice of payment methods for offenders so that provision is made for all circumstances. Acceptable methods of payment might include:

• company or personal cheque;

• debit cards;

• credit cards;

• postal order; or

• cash.

LOCATION OF PAYMENT CENTRES

6.10 Payment centres should be readily available and easily accessible to the public to provide a high level of customer service. Authorities should determine the number and range of payment centres required to provide the desired level of service against the financial cost, and provide adequate security arrangements for money, documentation and personnel. As a minimum, payment points should be provided at the local authority offices where the public is already provided with payment facilities for other local authority fees and charges.

6.11 The hours and days of operation of payment centres should be decided by authorities, taking into account the scale of their vehicle testing operation and the number and location of the payment points. As a minimum, payment points should be provided during the hours when payment facilities for other local authority fees and charges are already provided at local authority offices.

INTRODUCTION

7.1 The person to whom a Fixed Penalty Notice has been issued may wish to query the issue of that Notice in correspondence with the local authority. Alternatively, the person may wish to dispute formally the issue of that Notice by requesting a hearing.

QUERYING FIXED PENALTY NOTICES

7.2 The person in receipt of the Fixed Penalty Notice may wish to correspond with the local authority. An address and contact name should be provided on the Fixed Penalty Notice for this purpose. Entering into correspondence with the local authority does not cause the Fixed Penalty Notice to fall, nor does it suspend the period in which the Fixed Penalty must be paid. Nonetheless the local authority should endeavour to respond fully and promptly to any correspondence received.

7.3 Any reply from the local authority must make clear either that the Fixed Penalty Notice was issued correctly and that full payment must now be made in accordance with instructions on the Fixed Penalty Notice or that having reviewed the circumstances surrounding the issue of the Fixed Penalty Notice, the local authority has exercised its discretion and decided not to pursue payment.

7.4 It may be that the local authority decides not to pursue payment, but the Fixed Penalty has already been paid. In such circumstances the local authority should reimburse whoever paid the Fixed Penalty.

RESOLVING DISPUTES FORMALLY THROUGH A HEARING

7.5 Under the provisions of Schedule 11 to the 1995 Act (Fixed Penalty Notice procedures) every vehicle user issued with a Fixed Penalty Notice for their illegally polluting vehicle has the right to request a hearing in respect of the offence.

7.6 The hearing is a formal means of appealing against the existing absolute offence under section 42 of the Road Traffic Act 1988 i.e. an assertion that the vehicle being used does not comply with Regulation 98 of the Road Vehicles (Construction and Use) Regulations 1986, as amended. On issuing a Fixed Penalty Notice, the tester should inform the vehicle user of their right to dispute the offence.

7.7 The 2003 Regulations provide that an aggrieved vehicle user may request - in writing - a hearing in respect of the offence so that it is received by the named contact at the relevant local authority no later than the 28th day after the day the Fixed Penalty Notice was issued. This right is explained on the Fixed Penalty Notice at Annex 1. Under the Regulations, a hearing is in fact a prosecution of the offence in court. Once a hearing has been requested the Fixed Penalty Notice falls, and the matter is pursued as a prosecution by the local authority.

7.8 The Fixed Penalty Notice should contain the details of to whom a request for a hearing should be made and of the address to which a request should be sent (as shown on form at Annex 1).

7.9 Local authorities should acknowledge receipt of a request for a hearing within 7 days, having first checked their records in relation to the Fixed Penalty Notice which is being disputed. The acknowledgement should:

(if the request is received within 28 days of the Fixed Penalty Notice issue date)

• inform the individual that the Fixed Penalty Notice will be used as the basis for issuing a court summons, this being the hearing mechanism;

(if the request is received after 28 days)

• explain that the request is out of time and that the Fixed Penalty Notice must therefore be settled in full as per the instructions on the document itself;

(if the request is received within or outside 28 days but by a local authority other than that which issued the Fixed Penalty Notice)

• explain that the procedures have not been followed and that the matter should be followed up with the relevant authority.

PENALTIES IN COURT

7.10 Penalties awarded in court will not be payable to local authorities, but they will be able to apply for an award of costs towards the expense involved in pursuing a prosecution.

POWERS TO PROSECUTE

7.11 There are no legal obstructions to local authorities taking prosecutions. Local Authorities in Scotland are empowered to take prosecutions under the Local Government (Scotland) Act 1973.

ENFORCEMENT OF UNPAID FIXED PENALTY NOTICES

7.12 Where a Fixed Penalty Notice remains unpaid, in cases where a hearing was not requested within 28 days and the maximum period of 56 days has passed since the date the Fixed Penalty Notice was issued, the local authority can apply to a Sheriff Court for a summary warrant. Once the summary warrant has been obtained, the authority can instruct sheriff officers to serve a charge for payment.