Operating a Scheme

Enforcement and compliance

As outlined under ‘Definition of workplace parking places,’ a parking place is only considered a WPP if the space provided is occupied by a vehicle used by certain people. These means that determining the correct number of spaces cannot rely simply on counting the number of spaces provided, or even counting the number of employee spaces provided, if the employer provides a separate parking area for employees and customers.

In Nottingham, it is the responsibility of the WPP provider to determine the correct number of WPPs to be licensed. To support compliance, Nottingham has taken a collaborative approach to verifying that the correct number of WPPs have been licensed, beginning compliance checks with a meeting with the occupier of the premises.

Nottingham places conditions on WPL licences to require employers to provide the local authority with certain information to support compliance checks, such as the vehicle registration numbers of vehicles occupying WPPs. This can then be compared to the vehicles which are regularly parked on the premises (without connecting to other databases which could involve the processing of personal data).

Identification of vehicles regularly parked on liable premises that are not on the list provided by the employer are not, on their own, evidence that a contravention of the WPL scheme has occurred. For example a space occupied by a non-business customer would not be liable for charge, even if it was regularly parked at the premises during the compliance survey period.

Section 76(6-7) of the 2019 Act makes provision for offences in relation to WPL licence applications. A person commits an offence if the person intentionally provides false or misleading information in or in connection with an application in respect of a workplace parking licence. A person guilty of an offence is liable on summary conviction, to a fine not exceeding the statutory maximum, or conviction on indictment, to a fine.

Liability for charge

Under the 2019 Act, the occupier of the premises is liable for WPL charges. Regulations make further provision for situations where an arrangement has been made to provide parking at another premises. This would apply when the occupier of a premise has made arrangements with another party (ie other entity that would be liable for WPL) to provide WPP. As examples of when this might be relevant:

An employer makes arrangements with a neighbouring premise to allow employees to park on the neighbouring premise
An employer makes arrangements for their employees to park at a nearby multi-storey car park
Several employers share a car park, for example in an office or retail park

This provision allows the occupier of the premise (ie the car park operator, retail/office park landlord etc) to pass on the liability for the WPL charge to the employer. Under the regulations, the local authority may require evidence of these arrangements to be provided before the liability passes on.

There are no circumstances when an employee (or other occupier of a WPP) is liable to pay the WPL licence charge. There is no provision within the 2019 Act or 2022 Regulations about employers ‘passing on’ the charge. As occupiers of private property, businesses make decisions in regard to their premises including whether to provide parking and whether to charge for parking via private contractual arrangement. It will be a decision for employers, as it currently is, whether to charge employees for parking on their premises.

Licence application, duration, and conditions

Section 76 of the 2019 Act makes provisions in relation to licence applications, duration, and conditions to be placed on the licence. This section also makes provision in regards to short-term licences.

Local authorities may make provision within their schemes on

applications for a workplace parking licence
granting, issuing and renewing a licence
imposing conditions on a licence
the standard duration of a licence
varying or revoking a licence
suspending the requirement to hold a licence for a period (and reimbursing charges for such a period)

Local schemes may include provisions on short-term licences in special circumstances. The duration of a short-term workplace parking licence (or the total duration of a series of such licences) may not exceed 12 months. Local schemes may include provision conferring discretion on any person in connection with the granting of short term licences in special circumstances (for example to make decisions on a case-by-case basis).

There are no provisions in Scotland constraining the duration of a licence (except short-term licences as set out above) and therefore this is for the local authority to determine (WPL licences must be no longer than 12 months in duration under the legislation governing English and Welsh WPL schemes). The local authority may wish to consider the balance between administrative burden and supporting the objectives of the scheme: too short a period would pose a substantial burden on the local authority and the licensee. However if one objective of the local scheme is behaviour change in employers, then too long of a licencing duration (or provisions such as automatically renewing a licence) may not serve as a regular prompt for employers to re-assess and reduce their parking provision.

Similarly the local authority can determine provision within their schemes on variation of licences (ie if the number of WPPs has increased or decreased). For example, a local authority may determine how frequently the licences may be varied (ie quarterly, monthly, whether changes can be backdated, how often licences may be varied, etc). These decisions will have impacts on the objectives of the scheme (ie motivating behaviour change in parking provision) and resource implications for the local authority. As an example of how this might work in practice, detailed provision is included on page 14 of Nottingham’s Employer Handbook and paragraph 7 of Nottingham’s Order.

Content of licences

Section 77 of the 2019 Act makes provision as to the content of licences.

A workplace parking licence must:

state the name of the person to whom it is granted
specify the duration of the licence
identify the premises to which it relates
specify the maximum number of motor vehicles which may be parked at those premises at any one time, and
state the amount of the charge paid on the licence and set out the calculation of that amount

A workplace parking licence may include such other information in relation to the workplace parking licensing scheme or licensing processes as the local authority considers appropriate.

Reviews and appeals against licensing decisions

Regulations 22 to 24 make provision in regards to reviews and appeals against licensing decisions. For the avoidance of doubt, this does not refer to reviews and appeals against the scheme itself (or the examination process), or any element of schemes. This section also does not refer to reviews and appeals of penalty charges, which are discussed under “Penalty Charges” below. These regulations deal with reviews and appeals against a licensing decision that the local authority has made to grant, deny, or place conditions on a WPL licence.The regulations require local authorities to include a mechanism for reviewing licensing decisions in their local schemes. The review process must allow 28 days for a written application for review to be made after the licensing decision has been served onto the licence holder or applicant. Local authorities have discretion on accepting applications for review after 28 days. If a review is sought, then the licensing decision in question does not take effect until the review has been completed and a decision made. The local authority must consider the application for review, and advise the licence holder of its decision to confirm or revise the decision by serving a “notice of determination”, which must state the reasons for the local authority’s decision, and advise how the determination may be appealed to the sheriff.

The local authority must determine the appropriate internal process for reviewing its licensing decisions, ensuring the review is meaningful to avoid unnecessary appeals to the sheriff as set out below. The local authority may need to consider internal escalation to avoid a situation where the original decision is simply assessed by the same resource.

An appeal against the local authority’s determination may be made by summary application to the sheriff. This is a standard procedure which allows the sheriff to decide the appeal. If the sheriff allows the appeal, they must remit the decision back to the local authority to reconsider their decision. The sheriff can make a determination on expenses. Any licensing decision being appealed does not take effect until the appeals process has been fully completed.

Penalty Charges

Section 83 of the 2019 Act and regulations 25 to 33 include provisions on enforcement of WPL schemes and the issuing of penalty charges. These regulations allow local authorities to make provision within schemes to issue penalty charges for contraventions under WPL schemes. The regulations also provide a framework for penalty charges to be issued, reviewed, and appealed.

If a local authority intends to issue penalty charges for contraventions, they must include provision in their local scheme, including the amount (or formula) of the penalty charge.

Schemes may set out that a penalty charge can be issued in cases:

where a person is providing a workplace parking place at any premises in respect of which a licence is required under a scheme and there is no licence in force in respect of those premises
where a person is providing a workplace parking place at any premises in respect of which a licence under a scheme is in force in circumstances where the number of vehicles occupying workplace parking places at those premises exceeds the maximum number of workplace parking places covered by the licence
where a condition in a licence under a scheme (other than a condition as to the number of vehicles which may occupy workplace parking places at the premises to which the licence relates) has been contravened

Schemes which include penalty charges must set out the period within which a penalty charge must be paid (“payment period”), and this period must be at least 28 days. The scheme can specify different payment periods for different circumstances.

The penalty charge must be paid by the occupier of the premises, except in situations where an arrangement has been made to provide WPPs for someone other than the occupier, as set out under this guidance document’s ‘liability for charge’ section, above.

The consultation highlighted the potential for misunderstanding and confusion around WPL penalty charge, with many of the comments around penalty charge seemingly arising from the misperception that the WPL penalty charge and enforcement will be similar to other parking contraventions (for example, that it will be charged on individual vehicles). It should be made clear in the local authority’s communication that the WPL penalty charge is a licensing matter, and will always be on the occupier of the premises rather than individual drivers or employees.

Amount of the Penalty Charge

The scheme (if it makes provision for penalty charges) must state the amount of the penalty charge. The scheme can specify different amounts in different circumstances, and that the amount will be reduced if paid within a certain period of time. The scheme can also provide for the amount of the penalty charge to increase if it is not paid within the payment period (as set out below under the section ‘Charge certificates’).

In the WPL consultation, Transport Scotland asked questions whether the amount of the penalty charge should be set nationally via a formula in regulations or determined by local authorities. A majority of respondents indicated that felt that a formula would be appropriate; however very few respondents commented on the formula they considered appropriate. The comments provided indicated that the respondents understood the question but there was no consensus on the appropriate amount, with suggestions varying on the basis of schemes and local circumstances. On this basis, the decision on the amount of the penalty charge has been left to local authorities.

However the comments provided by consultation respondents provide some themes local authorities may wish to consider as they determine the amount of the penalty charge in their local scheme.

Proportionate - respondents suggested that penalty charges should be proportionate with other decriminalised offences such as parking fines and bus lane infringements, or for other offences such as speeding or using a mobile phone while driving. It is important to note that the types of contraventions cited by respondents are on individuals, rather than on occupiers of premises. While it is appropriate for penalty charges to be proportionate, they should be proportionate to the amount of the licence charge rather than other contraventions on motorists.
Fairness and consistency - some respondents felt the amount of the penalty charge should be consistent across Scotland to ensure a fair approach and to minimise confusion for businesses that operate in multiple locations. While difference in penalty charge amounts by local authorities should not cause confusion for businesses (both since many aspects of WPL schemes will vary by local authority, and because very few, if any, businesses are expected to be issued with penalty charge notices) this response does emphasise that penalty charges should be transparent and easy to understand.
Reduction for early payment and increase for late payment - the regulations make provision for local authorities to include this in their local schemes.
Challenge for local authorities to determine penalty charge - at least one respondent felt that a national formula for the penalty charge would reduce the risk local authorities may face a legal challenge on the basis of their penalty charge amount. While it is not a requirement for local authorities to make provision for penalty charge as part of their local scheme (and therefore no requirement for local authorities to include the amount (or other details) of the penalty charge in their proposal documents), it is likely to be best practice for local authorities to include details on proposed enforcement (such as the amount of the penalty charge) in their proposal and consultation.

In Nottingham, the amount of the penalty charge is set at one-half of the annual charge per contravention (ie per space, per day). Nottingham’s penalty charges for WPL are intended to strongly encourage co-operation and compliance. However, an alternative approach may be to set charges at levels comparable to other penalty charge notices or other non-payment of licence fee penalties.

Penalty Charge Notice

When a local authority decides to issue a penalty charge, they must send a penalty charge notice to the person liable to pay the charge, and the notice must include information on the amount of the charge, why the penalty charge was issued, how to pay the penalty charge, and information on how to appeal the penalty charge. Service of these documents is governed by section 26 of the Interpretation and Legislative Reform (Scotland) Act 2010.

Local authorities should engage with the Scottish Courts and Tribunals Service (SCTS) to determine the contravention codes which should be used on the penalty charge notice. This is not a statutory requirement but may aid with administration of appeals.

Charge Certificates

If a penalty charge is not paid or appealed within the period of time set by the local authority in the scheme, then the authority can issue a charge certificate: this means that an increased charge is payable by such a percentage as set out under the local authority’s scheme.

The period of time after which a charge certificate can be issued would normally be the payment period set by the local authority, except if a review or appeal of the penalty charge has been sought or made by the recipient of the penalty charge notice:

a) where a notice of rejection is served under regulation 31 but no appeal is made under regulation 32, the period of 28 days beginning with the date of service of the notice of rejection

b) where there has been an unsuccessful appeal against the imposition of the charge to the First-tier Tribunal and no subsequent application for review, or review, of the First-tier Tribunal’s decision or appeal to the Upper Tribunal, the period of 28 days beginning with the date on which the decision of the First-tier Tribunal is sent to the appellant

c) where an application for review of the decision of the First-tier tribunal in an appeal against the imposition of the charge has been rejected and there has been no subsequent appeal to the Upper Tribunal, the period of 28 days beginning with the date on which the decision rejecting the application for review is sent to the applicant

d) where there has been an unsuccessful review of the decision of the First-tier tribunal in an appeal against the imposition of the charge and no subsequent appeal to the Upper Tribunal, the period of 28 days beginning with the date on which the decision refusing the review is sent to the applicant

e) where there has been an unsuccessful appeal against the imposition of the charge to the Upper Tribunal, the period of 28 days beginning with the date on which the decision of the Upper Tribunal is sent to the appellant

f)where an appeal to either the First-tier Tribunal or Upper Tribunal is withdrawn, the period of 14 days beginning with the date on which it is withdrawn, and

g) where no representations are made under regulation 30(1) within the payment period, that period

If the recipient seeks a review of the penalty charge after the end of the payment period and the local authority chooses to undertake a review, then the charge certificate must be cancelled.

If the relevant period as set out above has expired, and the increased charge as set out in the charge certificate is not paid 14 days after the charge certificate is served, then the local authority may recover the increased charge as if it were payable under an extract registered decree arbitral bearing a warrant for execution issued by the sheriff for any sheriffdom. This process is in line with other local authority debt recovery processes.

Review and Appeals

The recipient of a penalty charge may seek a review of the penalty charge within the payment period. The representations made by the recipient to the local authority must include evidence relevant to the grounds the recipient is making for seeking a review of the penalty charge. The local authority has discretion on whether to consider representations made after the end of the payment period and may consider whether it is appropriate to do so. Local authorities will have existing review processes for matters such as parking, littering, dog fouling, fly tipping, or noise abatement and may wish to consider those when developing a process for reviewing penalty charges related to WPL.

Recipients of penalty charges must rely on one of the following grounds when making representations:

on the grounds that the penalty charge is incorrect
or the amount of the penalty charge is too high for the circumstances set out in the penalty charge notice
or that the penalty is payable by someone else. If this ground is relied on by the recipient seeking a review, then the representations must include a statement of the name and address (if known) of the person who is considered by the recipient of the penalty charge notice to be responsible for payment of the penalty charge

Local authorities must consider the review and serve either a notice cancelling the penalty charge, or a 'notice of rejection'. If the local authority accepts that at least one of the grounds outlined above have been established, it must:

a) cancel the penalty charge notice

b) serve a notice on the person by whom the representations were made—

i) stating that the penalty charge notice has been cancelled

ii) explaining the local authority’s decision, and its reasons for that decision, on each of the grounds on which representations were made

c) refund any penalty charge paid in relation to the cancelled penalty charge notice

If a local authority is satisfied that none of the grounds on which representations are made is established, it must serve a notice of rejection. The notice of rejection must:

state the reasons for the local authority’s decision on each ground on which representations were made
state that an appeal against the imposition of the penalty charge may be made to the First-tier Tribunal within the appeal period, or such longer period as the First-tier Tribunal may allow
state the grounds upon which an appeal may be made (being the same grounds as are specified above)
describe in general terms the manner and form for making an appeal
state that the First-tier Tribunal has power to make an award of expenses
where the scheme allows for it, state that if the penalty charge is paid before the end of such period as may be specified in the scheme, the penalty charge will be reduced by a percentage specified in that scheme, and
where the scheme allows for it, state that unless, before the end of the appeal period the penalty charge is paid, or an appeal is made to the First-tier Tribunal against the imposition of the charge, then the local authority may issue a charge certificate and describe the effect of the charge certificate

If the recipient receives a notice of rejection, an appeal can be made to the First-tier Tribunal for Scotland. The period in which an appeal may be made to the First-tier Tribunal will be set by the First-tier Tribunal. The Tribunals (Scotland) Act 2014 created a new two tier structure for devolved tribunals (First-tier Tribunal and Upper Tribunal) known collectively as the Scottish Tribunals. Further information on the Scottish Tribunals may be found on the Scottish Courts and Tribunals website.

Draft regulations have been produced to allocate the new Transport Appeals functions to the First Tier Tribunal for Scotland General Regulatory Chamber. In addition, it is intended that amendments will be made to the First-tier Tribunal for Scotland General Regulatory Chamber Parking and Bus Lane Cases and Upper Tribunal for Scotland (Composition) Regulations 2020 and the First-tier Tribunal for Scotland General Regulatory Chamber Parking and Bus Lane Appeals (Rules of Procedure) Regulations 2020. On 22 March 2022 the Scottish Government published a consultation on the regulations which will govern where appeals are heard within the First-tier Tribunal, and proposes that they be heard in the same Chamber as existing bus lane and parking appeals, the General Regulatory Chamber. There will be an onward route of appeal to the Upper Tribunal and ultimately to the Court of Session.

The current expectation is for these regulations to come into force in June 2023. As a matter of fairness, these rules must be in place before local authorities issue penalty charges related to WPL: otherwise there would be no route to appeal the penalty charge to the First-tier tribunal.

Further considerations

If local authorities in Scotland model their compliance and enforcement on Nottingham’s example, then we consider it likely that very few, if any, WPL penalty charge notices will be issued by local authorities. However enforcement by way of penalty charge, and particularly the amount of the penalty charge, are expected to play an important role in compliance and the success of the scheme.

Nottingham has a compliance process (as set out earlier in this section under ‘Enforcement and Compliance’) which involves WPL officers engaging with employers before undertaking inspections to verify the correct number of spaces are being licensed. It is employers’ responsibility to determine the correct number of WPPs and apply for a licence on that basis.

An appropriate level of penalty charge will provide motivation for providers of WPPs to approach these conversations collaboratively. We expect that the local authority may also wish to approach compliance collaboratively to avoid issuing a penalty charge, as the local authority would need to prove (in court, presuming it was appealed) that the parking places they have issued the penalty charge for are in fact WPPs and are not customer or other parking, a potentially resource-intensive set of evidence to compile with the information local authorities hold and the fluctuating nature of workplace parking.

While the Nottingham model has been successful, local authorities in Scotland may take an alternative approach if they conclude that it would be more appropriate for their local circumstances.

There is no time limit in legislation in which a local authority must issue a penalty charge notice. This is intended to allow time for the local authority to engage with providers of WPP and support them to become properly licenced before resorting to issuing a penalty charge notice: an approach which is more likely to support the objectives of the scheme.

Enforcement: Warrants

Section 87 of the 2019 Act makes provision for offences in relation to enforcement and warrants. Under this section, a person commits an offence if the person without reasonable excuse, fails to comply with a requirement of an authorised person, or intentionally obstructs an authorised person in the exercise of a power conferred by section 85(1). A person who commits an offence under subsection (7) is liable on summary conviction, to a fine not exceeding the statutory maximum, and on conviction on indictment, to a fine.

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