The Act Overview 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.