(1) A person who, with intent to deceive, forges, alters or uses any seal on recording equipment installed in, or designed for installation in, a vehicle to which section 97 or 97ZA of this Act applies, shall be guilty of an offence.
(2) A person guilty of an offence under subsection (1) above shall be liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding two years, or
(b) on summary conviction, to a fine not exceeding the statutory maximum.
(3) In the application of this section to England and Wales a person “forges” a seal if he makes a false seal in order that it may be used as genuine.
(1) Where recording equipment is installed in a vehicle to which this Part of this Act applies, any record produced by means of the equipment shall, in any proceedings under this Part of this Act, be evidence, and in Scotland sufficient evidence, of matters appearing from the record.
(2) Any entry made on a record sheet or printout by a driver for the purposes of—
(a) Article 34(1), (3), (4) or (6) or 37(2) of the EU Tachographs Regulation, or
(b) Article 12(1), (2) or (5) or 13(2)(a) of the Annex to the AETR,
shall, in any proceedings under this Part of this Act, be evidence, and in Scotland sufficient evidence, of the matters appearing from that entry.
(1) This section applies to the following documents—
(a) record sheets;
(b) manual records and printouts made in accordance with the EU Tachographs Regulation or the AETR.
(2) If such a document relates to a person in his capacity as the driver of a vehicle to which section 97 or 97ZA applies, he must before the end of the delivery period deliver the document to the transport undertaking to whose orders he was subject in driving the vehicle.
(3) The delivery period is the period of 42 days starting on the day after the latest date to which the document relates.
(4) A person who without reasonable excuse fails to comply with subsection (2) is liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(5) If a transport undertaking fails without reasonable excuse to secure that each driver subject to its orders complies with subsection (2), in respect of documents relating to him in his capacity as such a driver, it is liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(6) If a person is subject to the orders of two or more transport undertakings in driving a vehicle during a period to which a document relates-
(a) subsection (2) has effect as if it were a requirement to deliver that document to the undertaking to whose orders he was first subject in driving the vehicle during that period;
(b) subsection (5), in relation to that document, applies only to the undertaking to whose orders he was first subject in driving the vehicle during that period.
(1) This section applies where a transport undertaking is required by article 10 of the Community Drivers’ Hours Regulation or article 11(2)(b) of the Annex to the AETR to ensure that data is downloaded from a vehicle unit in a vehicle.
(2) The undertaking must ensure that relevant data is downloaded from the unit not later than the end of the download period if—
(a) it controls the use of the vehicle throughout that period, and
(b) it uses the vehicle at some point during that period.
(3) The download period begins and ends as set out in the following table—
Case | Download period begins | Download period ends
1. The undertaking has not previously downloaded data from the unit under this section | On the first day after the commencement of this section on which the undertaking— controls the use of the vehicle, and is required by article 10 of the Community Drivers' Hours Regulation or article 11(2)(b) of the Annex to the AETR to ensure that data is downloaded from the unit | On the earlier of— the expiry of the period of 90 days starting on the first day of the download period; any downloading of the data before the expiry of that period
2. The undertaking uses the vehicle during the period of 90 days starting on the day after the last downloading under this section | On the day after the last downloading under this section
3. The undertaking does not use the vehicle during the period of 90 days starting on the day after the last downloading under this section | On the first day of the undertaking’s use of the vehicle after the last downloading under this section
(4) The undertaking must ensure that all relevant data is downloaded from the unit—
(a) immediately before transferring control of the use of the vehicle to another person;
(b) without delay upon permanently removing the unit from service in the vehicle;
(c) without delay upon becoming aware that the unit is malfunctioning;
(d) without delay in any circumstances such that the imminent erasure of the data by the unit, in the normal course of its operations, is reasonably foreseeable.
(5) But subsection (4)(c) does not apply if because of the malfunctioning of the unit it is impossible to download the data.
(6) For the purposes of this section “relevant data” means any data recorded by the vehicle unit in a vehicle, other than detailed speed data.
(7) For the purposes of this section and section 97E an undertaking controls the use of a vehicle during any period in which it may determine when, by whom and for what purpose the vehicle may be driven.
(8) In this section and sections 97E to 97G, “downloaded” is to be construed in accordance with the definition of “downloading” in Article 2(2)(n) of the EU Tachographs Regulation.
(1) This section applies where a transport undertaking is required by article 10 of the Community Drivers’ Hours Regulation or article 11(2)(b) of the Annex to the AETR to ensure that data is downloaded from a driver card issued to a driver.
(2) The undertaking must ensure that all data is downloaded from the card not later than the end of the download period.
(3) The download period begins and ends as set out in the following table—
Case | Download period begins | Download period ends
1. The undertaking has not previously downloaded data from the card under this section | On the first day after the commencement of this section on which— the driver drives for the undertaking, and the undertaking is required by article 10 of the Community Drivers' Hours Regulation or article 11(2)(b) of the Annex to the AETR to ensure that data is downloaded from the card | On the earlier of— the expiry of the period of 28 days starting on the first day of the download period; any downloading of the data before the expiry of that period
2. The undertaking has previously downloaded data from the card under this section | On the first day on which the driver drives for the undertaking after the last downloading under this section
(4) The undertaking must ensure that the data is downloaded from the card—
(a) immediately before the driver ceases to be employed by the undertaking as a driver, or otherwise to carry out work for the undertaking as a driver;
(b) without delay upon becoming aware that the card has been damaged or is malfunctioning;
(c) without delay in any circumstances such that the imminent erasure of the data, in the normal course of use of the card, is reasonably foreseeable;
(d) if it is not possible to do so other than by means of a vehicle unit installed in a vehicle, immediately before ceasing to control the use of that vehicle.
(5) But subsection (4)(b) does not apply if because of the damage to the card or its malfunctioning it is impossible to download the data.
97F Downloading data: requirement imposed by an officer
(1) This section applies where—
(a) an officer has reason to believe that an offence under this Part of this Act or under the Traffic Acts has been committed in respect of the use of a vehicle, and
(b) article 10(5) of the Community Drivers’ Hours Regulation or article 11(2)(b) of the Annex to the AETR applies to a transport undertaking in respect of the vehicle unit in the vehicle or a driver card issued to a person who has driven the vehicle.
(2) The officer may, on production if so required of his authority, require the undertaking without delay—
(a) to download data from the vehicle unit or driver card;
(b) to permit him to inspect or copy the downloaded data.
(3) In this section—
(a) “download” is to be construed in accordance with the definition of “downloading” in Article 2(2)(n) of the EU Tachographs Regulation;
(b) “the Traffic Acts” has the meaning given in section 192(1) of the Road Traffic Act 1988.
(1) A transport undertaking commits an offence if, without reasonable excuse, it fails to comply with section 97D or 97E, or with a requirement imposed under section 97F.
(2) A transport undertaking commits an offence if, without reasonable excuse, it fails to comply with any requirement imposed by article 10 of the Community Drivers’ Hours Regulation or article 11(2)(b) of the Annex to the AETR in respect of the retention of data downloaded in accordance with section 97D to 97F.
(3) An offence under this section is punishable on summary conviction with a fine not exceeding level 5 on the standard scale.
(1) An officer may, on production if so required of his authority, require a person to make readily accessible to him, either on or from premises occupied or controlled by the person in question, that person’s retained data.
(2) Any person who without reasonable excuse fails to comply with a requirement under subsection (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(3) For the purposes of subsection (1), data is a person’s “retained data” if he is required by article 10 of the Community Drivers’ Hours Regulation or article 11(2)(b) of the Annex to the AETR to retain it for at least 12 months following its recording.
(1) The Minister may make regulations—
(a) for requiring drivers to keep, and employers of employee-drivers to cause to be kept, in such books as may be specified in the regulations records with respect to such matters relevant to the enforcement of this Part of this Act as may be so specified; and
(b) for requiring owner-drivers and the employers of employee-drivers to maintain such registers as may be so specified with respect to any such books as aforesaid which are in their possession or in that of any employee-drivers in their employment.
(2) Regulations under this section may contain such supplementary and incidental provisions including provisions supplementary and incidental to the requirements of the applicable Community rules as to books, records or documents as the Minister thinks necessary or expedient, including in particular provisions—
(a) specifying the person or persons from whom books and registers required for the purposes of the regulations or of the applicable Community rules are to be obtained and, if provision is made for them to be obtained from the Minister, charging a fee for their issue by him (which shall be payable into the Consolidated Fund);
(b) as to the form and manner of making of entries in such books and registers;
(c) as to the issue by and return to the employers of employee-drivers of books required to be kept by the latter for the purposes of the regulations;
(d) requiring any book in current use for the purposes of the regulations to be carried on, or by the driver of, any vehicle, as to the preservation of any books and registers used for those purposes, and otherwise as to the manner in which those books and registers are to be dealt with;
(e) for exemptions from all or any of the requirements of the regulations in respect of drivers of small goods vehicles as defined in section 103(6) of this Act and for other exemptions from all or any of those requirements.
(2A) The requirements of regulations made under this section shall not apply as respects the driving of—
(a) a vehicle to which section 97 of this Act applies and which is installed with recording equipment complying with the EU Tachographs Regulation (including the relevant technical specifications, within the meaning of that section);
(b) a vehicle to which section 97ZA applies and which is installed with recording equipment complying with the AETR (including the relevant Appendices to the Annex, within the meaning of that section).
(3) Subject to the provisions of any regulations made by the Minister, a traffic commissioner may dispense with the observance by any employee-driver or his employer, or by any owner-driver, of any requirement imposed under this section, either generally or in such circumstances or to such extent as the commissioner thinks fit, but the traffic commissioner shall not grant such a dispensation unless satisfied that it is not reasonably practicable for the requirement dispensed with to be observed.
(4) Any person who—
(a) contravenes any regulations made under this section, or
(b) contravenes, whether in the United Kingdom, an EU member State or another contracting country, any requirement as to books, records or documents of the applicable Community rules,
shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale, but the employer of an employee-driver shall not be liable to be convicted under this subsection by reason of contravening any such regulation whereby he is required to cause any records to be kept if he proved to the court that he has given proper instructions to his employees with respect to the keeping of the records and has from time to time taken reasonable steps to secure that those instructions are being carried out.
(4A) A person shall not be liable to be convicted under subsection (4) of this section by reason of contravening any regulation made under this section if he proves to the court that, if the vehicle in question had been such a vehicle as is mentioned in subsection (2A) of this section, there would have been no contravention of the provisions of this Part of this Act so far as they relate to the use of such vehicles.
(5) Any entry made by an employee-driver for the purposes of regulations under this section or of the applicable Community rules shall, in any proceedings under this Part of this Act, be admissible in evidence against his employer.
(1) An officer may, on production if so required of his authority, require any person to produce, and permit him to inspect and copy—
(a) any book or register which that person is required by regulations under section 98 of this Act to carry or have in his possession for the purpose of making in it any entry required by those regulations or which is required under those regulations to be carried on any vehicle of which that person is the driver;
(b) any , book or register which that person is required by regulations under section 98 of this Act to preserve;
(bb) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) if that person is the owner of a vehicle to which this Part of this Act applies, any other document of that person which the officer may reasonably acquire to inspect for the purpose of ascertaining whether the provisions of this Part of this Act or of regulations made thereunder have been complied with;
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
and that ..., book, register or document shall, if the officer so requires by notice in writing served on that person, be produced at the office of the traffic commissioner specified in the notice within such time (not being less than ten days) from the service of the notice as may be so specified.
(2) An officer may, on production if so required of his authority—
(a) at any time, enter any vehicle to which this Part of this Act applies and inspect that vehicle and any recording equipment installed in it and inspect and copy any record sheet on the vehicle on which a record has been produced by means of the equipment or an entry has been made;
(b) at any time which is reasonable having regard to the circumstances of the case, enter any premises on which he has reason to believe that such a vehicle is kept or that any such record sheets, books, registers or other documents as are mentioned in subsection (1) of this section are to be found, and inspect any such vehicle, and inspect and copy any such record sheet, book, register or document, which he finds there.
(3) For the purpose of exercising his powers under subsection (2)(a) and, in respect of a document carried on, or by the driver of, a vehicle, under subsection (1)(a) ... of this section, an officer may detain the vehicle in question during such time as is required for the exercise of that power.
(4) Any person who—
(a) fails to comply with any requirement under subsection (1) of this section; or
(b) obstructs an officer in the exercise of his powers under subsection (2) or (3) of this section,
shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(4A) A person shall not be liable to be convicted under subsection (4) of this section by reason of failing to comply with any requirement under subsection (1)(a) or (b) of this section if he proves to the court that, if the vehicle in question had been such a vehicle as is mentioned in section 98(2A) of this Act, there would have been no contravention of the provisions of this Part of this Act so far as they relate to the use of such vehicles.
(5) Any person who makes, or causes to be made, ...any entry in a book, register or document kept or carried for the purposes of regulations under section 98 thereof ... which he knows to be false or, with intent to deceive, alters or causes to be altered any such record or entry shall be liable—
(a) on summary conviction, to a fine not exceeding £200;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years.
(6) If an officer has reason to believe that an offence under subsection (5) of this section has been committed in respect of any record or document inspected by him under this section, he may seize that record or document; and where a record or document is seized as aforesaid and within six months of the date on which it was seized no person has been charged since that date with an offence in relation to that record or document under that subsection and the record or document has not been returned to the person from whom it was taken, a magistrate’s court shall, on an application made for the purpose by that person or by an officer, make such order respecting the disposal of the record or document and award such costs as the justice of the case may require.
(7) Any proceedings in Scotland under subsection (6) of this section shall be taken by way of summary application in the sheriff court; and in the application of that subsection to Scotland references to costs shall be construed as references to expenses.
(8) In this Part of this Act “officer” means an examiner appointed under section 66A of the Road Traffic Act 1988 and any person authorised for the purposes of this Part by a traffic commissioner.
(9) The powers conferred by this Part of this Act on an officer shall be exercisable also by a police constable, who shall not, if wearing uniform, be required to produce any authority.
(10) In this section references to the inspection and copying of any record produced by means of recording equipment installed in a vehicle include references to the application to the record of any process for eliciting the information recorded thereby and to taking down the information elicited from it.
(11) Subsections (1) to (7) and (10) do not apply in respect of vehicles to which section 97 or 97ZA of this Act applies.
99ZA Inspection of records and other documents and data relating to recording equipment
(1) An officer may, on production if so required of his authority, require any person to produce, and permit him to inspect, remove, retain and copy—
(a) if that person is the owner of a vehicle to which section 97 or 97ZA applies, any document of that person which the officer may reasonably require to inspect for the purpose of ascertaining whether the provisions of this Part of this Act have been complied with;
(b) any record sheet or hard copy of electronically stored data which that person is required by the EU Tachographs Regulation or the AETR to retain or to be able to produce;
(c) any book, register or other document required by the applicable Community Rules or which the officer may reasonably require to inspect for the purpose of ascertaining whether the requirements of the applicable Community rules have been complied with.
(2) An officer may, on production if so required of his authority, require any person—
(a) to produce and permit him to inspect any driver card which that person is required by Article 36 of the EU Tachographs Regulation or Article 12(7)(a) or (b) of the Annex to the AETR to be able to produce; and
(b) to permit the officer to copy the data stored on the driver card (and to remove temporarily the driver card for the purpose of doing so) and to remove and retain the copy.
(3) If the officer so requires by notice in writing, anything that a person is required to produce under subsection (1) or (2) of this section shall, instead of being produced when the requirement under those subsections is imposed, be produced at an address specified in the notice, within such time (not being less than ten days) from the service of the notice as is so specified.
(4) Where a notice is served under subsection (3) of this section, the officer may exercise his powers under this section at the place specified in the notice.
(5) In this Part of this Act any reference to copying data stored on a driver card or on digital recording equipment includes a reference to making a hard copy or an electronic copy of the data (and any reference to copies of data shall be construed accordingly).
(6) In this Part of this Act—
“digital recording equipment” means recording equipment that complies with the relevant provision;
“driver card” has the meaning given by the relevant provision;
“electronic copy” of data means a copy of data stored electronically together with the data’s digital signature (within the meaning of the relevant provision);
“hard copy” in relation to data stored electronically means a printed out version of the data.
(7) In subsection (6) “relevant provision” means—
(a) in relation to a vehicle to which section 97 applies—
(i) where the vehicle was put into service for the first time before the date on which the Passenger and Goods Vehicles (Tachographs) (Amendment etc.) Regulations 2019 come into force—
(aa) Annex IB of Council Regulation (EEC) No 3821/85 for as long as preserved and applied by Article 46 of the EU Tachographs Regulation, or
(bb) Annex 1C to Commission Implementing Regulation (EU) 2016/799; and
(ii) where the vehicle was put into service for the first time on or after the date on which the Passenger and Goods Vehicles (Tachographs) (Amendment etc.) Regulations 2019 come into force, Annex 1C to Commission Implementing Regulation (EU) 2016/799;
(b) in relation to a vehicle to which section 97ZA applies, Appendix 1B to the Annex to the AETR.
99ZB Inspection of records and other documents and data relating to recording equipment
Power of entry
(1) An officer may, on production if so required of his authority, at any time enter any vehicle to which section 97 or 97ZA of this Act applies in order to inspect that vehicle and any recording equipment in or on it.
(2) Where any officer enters any vehicle under subsection (1) of this section he may—
(a) inspect, remove, retain and copy any record sheet that he finds there on which a record has been produced by means of analogue recording equipment or on which an entry has been made;
(b) inspect, remove, retain and copy any hard copy of data that he finds there which was stored on any digital recording equipment or on a driver card;
(c) inspect, remove, retain and copy any other document that he finds there which the officer may reasonably require to inspect for the purpose of ascertaining whether the requirements of the applicable Community rules have been complied with;
(d) inspect any driver card that he finds there, copy the data stored on it (using any digital recording equipment in or on the vehicle or temporarily removing the driver card for the purpose of copying the data) and remove and retain the copy;
(e) copy data stored on any digital recording equipment that is in or on the vehicle and remove and retain that copy;
(f) inspect any recording equipment that is in or on the vehicle and, if necessary for the purposes of the inspection, remove it from the vehicle;
(g) retain the recording equipment as evidence if he finds that it has been interfered with;
(h) inspect the vehicle for the purpose of ascertaining whether there is in or on the vehicle any device which is capable of interfering with the proper operation of any recording equipment in or on the vehicle;
(i) inspect anything in or on the vehicle which he believes is such a device and, if necessary for the purpose of the inspection, remove it from the vehicle;
(j) retain the device as evidence if he finds that it is capable of interfering with the proper operation of the recording equipment.
(3) Where any officer who is an examiner appointed under section 66A of the Road Traffic Act 1988, or any constable, enters any vehicle under subsection (1) of this section, he may, if he has reason to believe that—
(a) any recording equipment in or on the vehicle has been interfered with so as to affect its proper operation, or
(b) there is in or on the vehicle any device which is capable of interfering with the proper operation of any recording equipment in or on the vehicle,
require the driver or operator of the vehicle to take it to an address specified by the officer or constable for the purposes of enabling an inspection of the recording equipment, the vehicle or any device in or on it to be carried out.
(4) An officer may, on production if so required of his authority, at any time which is reasonable having regard to the circumstances of the case, enter any premises on which he has reason to believe that—
(a) a vehicle to which section 97 or 97ZA of this Act applies is kept;
(b) any such document as is mentioned in section 99ZA(1) of this Act is to be found;
(c) any driver card or copy of data previously stored on a driver card or on recording equipment is to be found; or
(d) any digital recording equipment is to be found.
(5) Where any officer enters any premises under subsection (4) of this section he may—
(a) inspect any vehicle which he finds there and to which section 97 or 97ZA of this Act applies;
(b) inspect, remove, retain and copy any such document as is mentioned in section 99ZA(1) of this Act that he finds there;
(c) make a copy of any such copy of data as is mentioned in subsection (4)(c) of this section that he finds there, and remove and retain the copies he makes;
(d) inspect any driver card that he finds there, copy the data stored on it (using any digital recording equipment on the premises or temporarily removing the driver card for the purpose of copying the data) and remove and retain the copy;
(e) copy data stored on any digital recording equipment that he finds there and remove and retain that copy;
(f) inspect any recording equipment that he finds there and, if necessary for the purposes of inspection, remove it from the premises;
(g) retain any such recording equipment as evidence if he finds that it has been interfered with;
(h) inspect anything that he finds there which he believes is a device capable of interfering with the proper operation of any recording equipment and, if necessary for the purpose of the inspection, remove it from the premises;
(i) retain any such device as evidence if he finds that it is capable of interfering with the proper operation of recording equipment.
(6) For the purposes of–
(a) exercising any of his powers under this section in relation to a vehicle or anything found in or on a vehicle, or
(b) exercising any of his powers under section 99ZA(1) or (2) of this Act in respect of a document or driver card carried by the driver of a vehicle,
an officer may detain the vehicle during such time as is required for the exercise of that power.
(7) If—
(a) at the time when a requirement is imposed under subsection (3) of this section the vehicle is more than five miles from the address specified by the officer or constable to which the vehicle is to be taken; and
(b) the relevant instrument is found not to have been contravened in relation to the recording equipment, the vehicle or any device in or on it;
the relevant person must pay, in respect of loss occasioned, such amount as in default of agreement may be determined by a single arbitrator (in Scotland, arbiter) agreed upon by the parties or, in default of agreement, appointed by the Secretary of State.
(8) In subsection (7) of this section—
“relevant person” means—
if the requirement was imposed by an examiner appointed under section 66A of the Road Traffic Act 1988, the Secretary of State;
if the requirement was imposed by a constable, the chief officer of police for the police area in which the requirement was imposed;
“relevant instrument” means—
in relation to a vehicle to which section 97 applies, the EU Tachographs Regulation;
in relation to a vehicle to which section 97ZA applies, the AETR.
(9) In this Part of this Act, “analogue recording equipment” means—
(a) in relation to a vehicle to which section 97 applies, recording equipment that complies with Annex I to the EU Tachographs Regulation;
(b) in relation to a vehicle to which section 97ZA applies, recording equipment that complies with Appendix 1 to Annex 1 to the AETR.
99ZC Inspection of records and other documents and data relating to recording equipment
Sections 99ZA and 99ZB: supplementary
(1) Where an officer makes any hard copy of data stored on a driver card or on recording equipment under section 99ZA or 99ZB of this Act he may require a person to sign the hard copy (if necessary with manual corrections) to confirm that it is a true and complete record of his activities during the period covered by it.
(2) Any record sheet, book, register, other document or any electronic copy of data that is retained by an officer under section 99ZA or 99ZB of this Act may only be retained—
(a) for six months; and
(b) if it is required as evidence in any proceedings, any further period during which it is so required.
(3) In sections 99ZA and 99ZB of this Act references to the inspection and copying of any record produced by means of equipment in or on a vehicle include references to the application to the record of any process for eliciting the information recorded by it and to taking down the information elicited from it.
99ZD Inspection of records and other documents and data relating to recording equipment
Offence of failing to comply with requirements or obstructing an officer
(1) A person commits an offence if he—
(a) fails without reasonable excuse to comply with any requirement imposed on him by an officer under any of sections 99ZA to 99ZC of this Act; or
(b) obstructs an officer in the exercise of his powers under section 99ZB or 99ZF of this Act.
(2) A person guilty of an offence under subsection (1) of this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
99ZE Inspection of records and other documents and data relating to recording equipment
Offences: false records and data etc.
(1) A person commits an offence—
(a) if he makes, or causes or permits to be made, a relevant record or entry which he knows to be false;
(b) if, with intent to deceive, he alters, or causes or permits to be altered, a relevant record or entry;
(c) if he destroys or suppresses, or causes or permits to be destroyed or suppressed, a relevant record or entry; or
(d) if he fails without reasonable excuse to make a relevant record or entry, or causes or permits such a failure.
(2) For the purposes of subsection (1) of this section a “relevant record or entry” is—
(a) any record or entry required to be made by or for the purposes of the EU Tachographs Regulation , the AETR or section 97 or 97ZA of this Act; or
(b) any entry in a book, register or document kept or carried for the purposes of the applicable Community rules.
(3) A person commits an offence—
(a) if he records or causes or permits to be recorded any data which he knows to be false on recording equipment or on a driver card;
(b) if he records or causes or permits to be recorded any data which he knows to be false on any hard copy of data previously stored on recording equipment or on a driver card;
(c) if, with intent to deceive, he alters, or causes or permits to be altered, any data stored on recording equipment or on a driver card or appearing on any copy of data previously so stored;
(d) if, with intent to deceive, he produces anything falsely purporting to be a hard copy of data stored on recording equipment or on a driver card;
(e) if he destroys or suppresses, or causes or permits to be destroyed or suppressed, any data stored in compliance with the requirements of the applicable Community rules on recording equipment or on a driver card; or
(f) if he fails without reasonable excuse to record any data on recording equipment or on a driver card, or causes or permits such a failure.
(4) A person guilty of an offence under subsection (1) or (3) of this section consisting otherwise than in permitting an act or omission is liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum; or
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both.
(5) A person guilty of an offence under subsection (1) or (3) of this section consisting in permitting an act or omission is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(6) A person commits an offence if he produces, distributes, installs, advertises or sells any device—
(a) that is designed to interfere with the proper operation of any recording equipment, or
(b) that is designed to enable the falsification, alteration, destruction or suppression of data stored in compliance with requirements of the applicable Community Rules on any recording equipment or driver’s card.
(7) A person commits an offence if without reasonable excuse he provides information which would assist other persons in producing any such device.
(8) A person shall not be liable to be convicted under subsection (6) or (7) of this section if he proves to the court that he produced, supplied or installed the device, or provided information to assist a person in producing a device, for use in connection with the enforcement of the provisions of this Part of this Act.
(9) A person guilty of an offence under subsection (6) or (7) of this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(10) For the purposes of this section, a person shall be taken to permit an act or omission if he is, or ought reasonably to be, aware of the act or omission, or of it being a likelihood, and takes no steps to prevent it.
99ZF Inspection of records and other documents and data relating to recording equipment
Power to seize documents
(1) If an officer has reason to believe that an offence under section 99ZE of this Act has been committed in respect of any document inspected by him under section 99ZA or 99ZB of this Act, he may seize that document.
(2) Where a document is so seized, a magistrates' court shall, on an application made for the purpose by that person or by an officer, make such order respecting the disposal of the document and award such costs as the justice of the case may require if–
(a) within six months of the date on which it was seized no person has been charged since that date with an offence under section 99ZE of this Act in relation to that document; and
(b) the document has not been returned to the person from whom it was taken.
(3) Any proceedings in Scotland under subsection (2) of this section shall be taken by way of summary application in the sheriff court.
In the application of that subsection to Scotland the reference to costs shall be construed as a reference to expenses.
(1) Subsection (2) applies if a vehicle appears to a stopping officer to be one to which this Part could apply.
(2) The officer may direct the driver to stop the vehicle for the purpose of enabling a Part 6 officer to exercise powers under this Part.
(3) In this section—
“Part 6 officer” means an officer as defined in section 99(8);
“stopping officer” means an officer appointed under section 66B of the Road Traffic Act 1988.
(1) If—
(a) the driver of a UK vehicle obstructs an authorised person in the exercise of his powers under subsection (2) or (3) of section 99 or under section 99ZB of this Act or fails to comply with any requirement made by an authorised person under subsection (1) of section 99 or under any of sections 99ZA to 99ZC of this Act,
(b) it appears to an authorised person that, in relation to a UK vehicle or its driver, there has been a contravention of any of the provisions of—
(i) sections 96 to 98 of this Act and any orders or regulations under those sections, or
(ii) the applicable Community rules,
or that there will be such a contravention if the vehicle is driven on a road, or
(c) it appears to an authorised person that an offence under section 99(5) or section 99ZE of this Act has been committed in respect of a UK vehicle or its driver,
the authorised person may prohibit the driving of the vehicle on a road either for a specified period or without limitation of time.
(2) Where an authorised person prohibits the driving of a vehicle under this section, he may also direct the driver to remove the vehicle (and, if it is a motor vehicle drawing a trailer, also to remove the trailer) to such place and subject to such conditions as are specified in the direction; and the prohibition shall not apply to the removal of the vehicle in accordance with that direction.
(3) On imposing a prohibition under subsection (1) of this section, the authorised person shall give notice in writing of the prohibition to the driver of the vehicle, specifying the circumstances (as mentioned in paragraph (a), (b) or (c) of that subsection) in consequence of which the prohibition is imposed and stating whether it is imposed only for a specified period (and if so specifying the period) or without limitation of time.
(4) Any direction under subsection (2) of this section may be given—
(a) in the notice under subsection (3) of this section, or
(b) in a separate notice in writing given to the driver of the vehicle.
(5) In this section—
“authorised person” means—
an examiner appointed by the Secretary of State under section 66A of the Road Traffic Act 1988, or
a constable authorised to act for the purposes of this section by or on behalf of a chief officer of police;
“UK vehicle” means a vehicle registered under the Vehicle Excise and Registration Act 1994.
(6) Schedule 4 to the Road Safety Act 2006 makes provision about the immobilisation of vehicles the driving of which has been prohibited under subsection (1) of this section and about their removal and disposal.
(1) Subject to any exemption granted under subsection (2) of this section, a prohibition under subsection (1) of section 99A of this Act shall come into force as soon as notice of it has been given in accordance with subsection (3) of that section and shall continue in force—
(a) until it is removed under subsection (3) of this section, or
(b) in the case of a prohibition imposed for a specified period, until it is removed under that subsection or that period expires, whichever first occurs.
(2) Where notice of a prohibition has been given under section 99A(3) of this Act in respect of a vehicle, an exemption in writing for the use of the vehicle in such manner, subject to such conditions and for such purposes as may be specified in the exemption may be granted by any authorised person.
(3) A prohibition under section 99A(1) of this Act may be removed by any authorised person, if he is satisfied that appropriate action has been taken to remove or remedy the circumstances (as mentioned in paragraph (a), (b) or (c) of section 99A(1) of this Act) in consequence of which the prohibition was imposed; and on doing so the authorised person shall give notice in writing of the removal of the prohibition to the driver of the vehicle.
(4) In this section, “authorised person” has the same meaning as in section 99A of this Act.
Any person who—
(a) drives a vehicle on a road in contravention of a prohibition imposed under section 99A(1) of this Act,
(b) causes or permits a vehicle to be driven on a road in contravention of such a prohibition, or
(c) refuses or fails to comply within a reasonable time with a direction given under section 99A(2) of this Act,
shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
100 Power to give effect to international agreements.
(1) The Minister may by order make, in relation to Great Britain, such provision as appears to him to be requisite for enabling the United Kingdom to become a party to any international agreement relating to the drivers or crews of vehicles used on international journeys, and, without prejudice to the generality of the foregoing provisions of this subsection, an order under this subsection may—
(a) modify or exclude any of the provisions contained in or having effect under this Part of this Act or contained in or having effect under any other enactment passed before or after this Act;
(b) provide for exemptions from all or any of the provisions of the order;
(c) provide for the punishment of contraventions of any provision of the order;
(d) contain such supplementary, incidental or consequential provisions as appear to the Minister to be necessary or expedient.
(2) The Governor of Northern Ireland may, by Order in the Privy Council of Northern Ireland, make provision in relation to Northern Ireland for any purpose for which provision may be made in relation to Great Britain under subsection (1) of this section, and in relation to any such Order the provisions of that subsection shall apply accordingly as if for references to the Minister there were substituted references to the Governor of Northern Ireland; and any such Order may authorise the Ministry of Home Affairs for Northern Ireland to make regulations for any of the purposes of the Order.
(1) In relation to orders or regulations made under this Part of this Act, the provisions of this section shall have effect in addition to the provisions of section 157 of this Act.
(2) Any order or regulations under this Part of this Act may make different provision for different classes of case.
(3) No order shall be made ... 100(1) of this Act unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament; and any regulations made under this Part of this Act (except regulations made ... by virtue of an Order under section 100(2)) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) No recommendation shall be made to the Governor of Northern Ireland in Council to make an Order under subsection (2) of section 100 of this Act unless a draft thereof has been laid before the Parliament of Northern Ireland and has been approved by resolution of each House of Parliament of Northern Ireland; and an Order under that subsection which authorises the making of regulations may make provision for the laying of such regulations before the Parliament of Northern Ireland and for their annulment in such circumstances as may be specified in the Order.
(5) A definition or description of a class of vehicles for the purposes of any order or regulation under this Part of this Act may be framed by reference to any characteristic of the vehicles or to any other circumstances whatsoever.
(6) Before making any order or regulations under this Part of this Act the Minister shall consult with such representative organisations as he thinks fit.
102 Application to the Crown and exemption for police and fire brigade.
(1) Subject to subsection (2) of this section, this Part of this Act shall apply to vehicles and persons in the public service of the Crown.
(2) This Part of this Act shall not apply in the case of motor vehicles owned by the Secretary of State for Defence and used for naval, military or air force purposes or in the case of vehicles so used while being driven by persons for the time being subject to the orders of a member of the armed forces of the Crown.
(3) Where an offence under this Part of this Act is alleged to have been committed in connection with a vehicle in the public service of the Crown, proceedings may be brought in respect of the offence against a person nominated for the purpose on behalf of the Crown; and, subject to subsection (3A) below, where any such offence is committed any person so nominated shall also be guilty of the offence as well as any person actually responsible for the offence (but without prejudice to proceedings against any person so responsible).
(3A) Where a person is convicted of an offence by virtue of subsection (3) above—
(a) no order may be made on his conviction save an order imposing a fine,
(b) payment of any fine imposed on him in respect of that offence may not be enforced against him, and
(c) apart from the imposition of any such fine, the conviction shall be disregarded for all purposes other than any appeal (whether by way of case stated or otherwise).
(4) This Part of this Act shall not apply in the case of motor vehicles while being used for police or fire brigade fire and rescue authority purposes or for or in connection with the exercise of any function of the Scottish Fire and Rescue Service or for purposes relating to the functions of Ministry of Defence fire-fighters (as defined in section 16 of the Armed Forces Act 2016).
102A Exclusion of application to tramcars and trolley vehicles.
(1) This Part of this Act and section 255 of the Road Traffic Act 1960 in its application thereto shall not apply to tramcars or trolley vehicles operated under statutory powers.
(2) In this section “operated under statutory powers” means, in relation to tramcars or trolley vehicles, that their use is authorised or regulated by special Act of Parliament or by an order having the force of an Act.
(3) Subsection (1) above shall have effect subject to any such Act or order as is mentioned in subsection (2) above, and any such Act or order may apply to tramcars or trolley vehicles to which it relates any of the provisions excluded by the said subsection (1).
102B Partnerships and other unincorporated associations
(1) Proceedings for an offence under this Part of this Act alleged to have been committed by a partnership must be brought in the name of the partnership (and not in that of any of the partners).
(2) Proceedings for an offence under this Part of this Act alleged to have been committed by an unincorporated association (other than a partnership) must be brought in the name of the association (and not in that of any of its members).
(3) Rules of court relating to the service of documents have effect as if the partnership or association were a body corporate.
(4) In proceedings for an offence under this Part of this Act brought against a partnership or an unincorporated association, the following provisions apply as they do in relation to a body corporate—
(a) section 33 of the Criminal Justice Act 1925 and Schedule 3 to the Magistrates’ Courts Act 1980;
(b) section 70 of the Criminal Procedure (Scotland) Act 1995
(5) A fine imposed on a partnership on its conviction for an offence under this Part of this Act must be paid out of the partnership assets.
(6) A fine imposed on an unincorporated association on its conviction for an offence under this Part of this Act must be paid out of the funds of the association.
(7) Subsections (1) and (2) do not affect any liability of a partner, officer or member under section 102C.
(1) If an offence under this Part of this Act committed by a body corporate is proved—
(a) to have been committed with the consent or connivance of an officer of the body, or
(b) to be attributable to any neglect on the part of an officer of the body,
he, as well as the body corporate, is guilty of the offence.
(2) In subsection (1) a reference to an officer of a body includes a reference to—
(a) a director, manager or secretary;
(b) a person purporting to act as an officer of the body.
(3) If the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body.
(4) If an offence under this Part of this Act committed by a partnership is proved—
(a) to have been committed with the consent or connivance of a partner, or
(b) to be attributable to any neglect on the part of a partner,
he, as well as the partnership, is guilty of the offence.
(5) In subsection (4) a reference to a partner includes a reference to a person purporting to act as a partner.
(6) If an offence under this Part of this Act committed by an unincorporated association (other than a partnership) is proved—
(a) to have been committed with the consent or connivance of an officer of the association, or
(b) to be attributable to any neglect on the part of an officer of the association,
he, as well as the association, is guilty of the offence.
(7) In subsection (6) a reference to an officer of an association includes a reference to—
(a) a member of its governing body;
(b) a person purporting to act in the capacity of an officer of the association.
103 Interpretation, supplementary provisions, etc., for Part VI.
(1) In this Part of this Act—
“AETR” has the meaning given by section 97ZA(12) of this Act;
“agriculture” has the meaning assigned by section 109(3) of the Agriculture Act 1947 or, in relation to Scotland, section 86(3) of the Agriculture (Scotland) Act 1948;
“analogue recording equipment” has the meaning given by section 99ZB(9) of this Act;
“the Community Drivers’ Hours Regulation” means Regulation (EC) No. 561/2006 of the European Parliament and of the Council as amended from time to time;
“contracting ... country” means a country ... which is a contracting party to—
the European Agreement concerning the Work of Crews of Vehicles engaged in International Road Transport of 1st July 1970, as amended; ...
...
...
“copying” and “copies”, in relation to data stored on a driver card or digital recording equipment, is to be construed in accordance with section 99ZA(5) of this Act;
“digital recording equipment” has the meaning given by section 99ZA(6) of this Act;
“driver”, “employee-driver” and “owner-driver” have the meaning assigned by section 95(3) of this Act;
“driver card” has the meaning given by section 99ZA(6) of this Act;
“electronic copy” of data has the meaning given by section 99ZA(6) of this Act;
“employer”, in relation to an employee-driver, means the employer of that driver in the employment by virtue of which that driver is an employee-driver;
“the EU Tachographs Regulation” has the meaning given by section 97(7) of this Act;
the European Agreement concerning the Work of Crews of Vehicles engaged in International Road Transport of 1st July 1970, as amended; or
the EEA agreement;
“field test” has the meaning given by section 96A(1) of this Act;
“hard copy” in relation to data stored electronically has the meaning given by section 99ZA(6) of this Act;
“the applicable Community rules” means—
the Community Drivers' Hours Regulation, including the AETR; and
the EU Tachographs Regulation;
“the domestic drivers’ hours code” has the meaning given by section 96(13) of this Act;
“officer” has the meaning given by section 99(8) of this Act;
“prescribed” means prescribed by regulations made by the Minister;
“recording equipment” has the meaning given by section 97(7) of this Act;
“record sheet” includes a temporary sheet attached to a record sheet in accordance with Article 37(2) of the EU Tachographs Regulation;
...
“transport undertaking” has the meaning given in the Community Drivers’ Hours Regulation;
“working day”, in relation to any driver, means—
(a) any period during which he is on duty and which does not fall to be aggregated with any other such period by virtue of paragraph (b) of this definition; and
(b) where a period during which he is on duty is not followed by an interval for rest of not less than eleven hours or (where permitted by virtue of section 96(4)(b) of this Act) of not less than nine and a half hours, the aggregate of that period and each successive such period until there is such an interval as aforesaid, together with any interval or intervals between periods so aggregated;
“working week” means, subject to subsection (5) of this section, a week beginning at midnight between Sunday and Monday:
and any expression not defined above which is also used in the Act of 1960 has the same meaning as in that Act.
(2) For the purposes of this Part of this Act a director of a company shall be deemed to be employed by it.
(3) In this Part of this Act references to a person driving a vehicle are references to his being at the driving controls of the vehicle for the purpose of controlling its movements, whether it is in motion or is stationary with the engine running.
(4) In this Part of this Act references to a driver being on duty are references—
(a) in the case of an employee-driver, to his being on duty (whether for the purpose of driving a vehicle to which this Part of this Act applies or for other purposes) in the employment by virtue of which he is an employee-driver, or in any other employment under the person who is his employer in the first-mentioned employment; and
(b) in the case of an owner-driver, to his driving a vehicle to which this Part of this Act applies for the purposes of a trade or business carried on by him or being otherwise engaged in work for the purposes of that trade or business, being work in connection with such a vehicle or the load carried thereby.
(5) A traffic commissioner may, on the application of an owner-driver or of the employer of an employee-driver, from time to time direct that a week beginning at midnight between two days other than Sunday and Monday shall be, or be deemed to have been, a working week in relation to that owner-driver or employee-driver; but where by virtue of any such direction a new working week begins before the expiration of a previous working week then, without prejudice to the application of the provisions of this Part of this Act in relation to the new working week, those provisions shall continue to apply in relation to the previous working week until its expiration.
(6) In section 98(2)(e) of this Act “a small goods vehicle” means a goods vehicle which has a plated weight of the prescribed description not exceeding 3500 kilograms or (not having a plated weight) has an unladen weight not exceeding 1525 kilograms; but the Minister may by regulations direct that the foregoing provisions of this subsection shall have effect, in relation to either or both of those sections—
(a) with the substitution for either of the weights there specified of such other weight as may be specified in the regulations;
(b) with the substitution for either of those weights or for any other weight for the time being specified as aforesaid of a weight expressed in terms of the metric system, being a weight which is equivalent to that for which it is substituted or does not differ from it by more than five per cent. thereof.
(7) An offence under this Part of this Act may be treated for the purpose of conferring jurisdiction on a court (but without prejudice to any jurisdiction it may have apart from this subsection) as having been committed in any of the following places, that is to say—
(a) the place where the person charged with the offence was driving when evidence of the offence first came to the attention of a constable or vehicle examiner;
(b) the place where that person resides or is or is believed to reside or be at the time when the proceedings are commenced: or
(c) the place where at that time that person or, in the case of an employee-driver, that person’s employer or, in the case of an owner-driver, the person for whom he was driving, has his place or principal place of business or his operating centre for the vehicle in question.
In this subsection “vehicle examiner” means an officer within the meaning of section 99 of this Act.
(8) The enactments specified in Schedule 11 to this Act shall have effect subject to the amendments there specified.
(9) Any order made under section 166(2) of this Act appointing a day for the purposes of any of the provisions of this Part of this Act may contain such transitional provision as the Minister thinks necessary or expedient as respects the application of any particular provision of this Part of this Act to a working week or working day falling partly before and partly after the date on which that provision comes into operation.
(10) A reference in this Part of this Act to Annex IB to the EU Tachographs Regulation has effect, until the coming into force of that Annex, as a reference to Annex IB to Council Regulation (EEC) No. 3821/85 on recording equipment in road transport as read with the Community Drivers’ Hours and Recording Equipment Regulations 2007.
(1) For the purposes of sections 105 to 111 of this Act the inland waterways comprised in the undertakings of the Waterways Board and Canal & River Trust shall be divided into—
(a) the waterways for the time being specified in Part I of Schedule 12 to this Act, being waterways (in this Part of this Act referred to as “the commercial waterways”) to be principally available for the commercial carriage of freight;
(b) the waterways for the time being specified in Part II of that Schedule, being waterways (in this Part of this Act referred to as “the cruising waterways”) to be principally available for cruising, fishing and other recreational purposes; and
(c) the remainder.
(2) The description contained in the said Schedule 12 of any waterway shall be read subject to any order made by the Minister or, in the case of a waterway in Scotland, the Scottish Ministers for giving greater precision to that description by reference to a map.
(3) The Minister or, in the case of a waterway in Scotland, the Scottish Ministers may by order transfer any waterway from one Part of the said Schedule 12 to the other Part, remove any waterway from either of those Parts or add to either of those Parts any inland waterway for the time being comprised in the undertaking of the Board or Canal & River Trust which is not for the time being a commercial waterway or a cruising waterway.
(3A) Canal & River Trust may apply to the Minister for the making of an order under subsection (3).
(3B) In deciding whether to make an order under subsection (3), the Minister must have regard to the financial position of Canal & River Trust.
(4) Schedule 13 to this Act shall have effect in relation to the making of any order under subsection (3) of this section, and any such order shall be subject to annulment in the case of an order made by the Minister, in pursuance of a resolution of either House of Parliament in the case of an order made by the Scottish Ministers, in pursuance of a resolution of the Scottish Parliament..
(5) In subsection (3) of this section references to any waterway include references to any part of that waterway.
(1) With a view to securing the general availability of the commercial and cruising waterways for public use, it shall be the duty of the Waterways Board and of Canal & River Trust, in relation to the waterways comprised in their respective undertakings, subject to the provisions of this section—
(a) to maintain the commercial waterways in a suitable condition for use by commercial freight-carrying vessels; and
(b) to maintain the cruising waterways in a suitable condition for use by cruising craft, that is to say, vessels constructed or adapted for the carriage of passengers and driven by mechanical power.
(2) Neither paragraph (a) nor paragraph (b) of subsection (1) of this section shall impose on the Board or Canal & River Trust any duty to maintain a waterway, or any part of a waterway, in a suitable condition for use by any vessel of the kind mentioned in that paragraph unless the dimensions of the vessel (that it to say, its length, width, height of superstructure and draught)—
(a) correspond to, or are less than, those of a vessel of that kind which customarily used that waterway or part during the period of nine months ending with 8th December 1967; or
(b) if the waterway or part has been restored or improved since that date, are such as to make it suitable for use on that waterway or part;
but, save as aforesaid, the duty imposed by that paragraph shall extend to any vessel of the kind therein mentioned as respects the dimensions of which paragraph (a) or (b) of this subsection is satisfied.
(3) If it appears to the Minister that, having regard to any change in the size, design or type of vessel customarily using any commercial waterway or cruising waterway, or any part thereof, or to any other reason the Minister considers relevant to the duty under subsection (1), it is desirable to exercise his powers under this subsection, he may (after consultation with Canal & River Trust) by order substitute for the duty imposed on Canal & River Trust by the foregoing provisions of this section in respect of that waterway or part such duty in respect of the maintenance thereof as he considers appropriate having regard to that change, and may by that order make such incidental or transitional provision as he thinks necessary or expedient in connection therewith.
(3ZA) Canal & River Trust may apply to the Minister for the making of an order under subsection (3).
(3ZB) In deciding whether to make any order under subsection (3), the Minister must have regard to the financial position of Canal & River Trust.
(3A) If it appears to the Scottish Ministers that, having regard to any change in the size, design or type of vessel customarily using any commercial waterway or cruising waterway, or any part of such waterway, it is desirable to exercise their powers under this subsection, they may (after consultation with the Board) by order substitute for the duty imposed on the Board by subsection (1) in respect of that waterway (or part) such duty in respect of the maintenance of such waterway (or part) as they consider appropriate having regard to that change, and may by that order make such incidental or transitional provision as they think necessary or expedient in connection therewith.
(4) Schedule 13 to this Act shall have effect in relation to the making of any order under subsection (3) or (3A) of this section, and any such order made by the Minister under subsection (3) shall be subject to annulment in pursuance of a resolution of either House of Parliament, and an order made by the Scottish Ministers under subsection (3A) is subject to the negative procedure.
(5) Section 17 of the Regulation of Railways Act 1873 (which requires the Board to maintain certain inland waterways) shall cease to apply to any inland waterway which on the date on which this section comes into force is comprised in the undertaking of the Board; and any local enactment passed with respect to any such inland waterway, so far as that enactment—
(a) confers any public or private right of navigation over the waterway; or
(b) imposes any duty to maintain that waterway for the purpose of navigation (including any duty to supply, or maintain a supply of, water for the waterway for that purpose),
shall cease to have effect.
(6) If the Board or Canal & River Trust acquire any inland waterway after the date on which this section comes into force any local enactment passed with respect thereto shall, so far as it confers or imposes any such right or duty as is mentioned in paragraph (a) or (b) of subsection (5) of this section, cease to have effect on the date on which the waterway is so acquired.
(7) Any person who suffers loss by reason of the extinguishment by virtue of subsection (5) or (6) of this section of any private right shall be entitled to be paid by the Board or, as the case may be, Canal & River Trust compensation to be determined, in case of dispute, by the appropriate tribunal; and the tribunal shall, in determining the compensation, take into account any contractual right offered by the Board or, as the case may be, Canal & River Trust in substitution for the right which is extinguished.
(8) Where by virtue of subsection (5) of this section a statutory right of navigation ceases to be exercisable as respects a waterway of which the Waterways Board or, as the case may be, Canal & River Trust are not the owner, the Board or, as the case may be, Canal & River Trustshall have power to authorise any use of the waterway which would have been authorised by that statutory right.
106 Enforcement of maintenance duty – the Waterways Board
(1) If, on an application by any person under this section to the Court of Session, the court determines that there has been, in respect of any waterway, a serious and persistent failure by the Waterways Board to discharge the duty imposed on them by—
(a) section 105(1), or
(b) an order made under section 105(3A),
the court may, subject to the provisions of this section, require the Board to remedy that failure; but, save as aforesaid, neither subsection (1) of section 105 nor any order under subsection (3A) of that section shall be construed as imposing any duty or liability enforceable by proceedings before any court to which the Board would not otherwise be subject.
(2) The fact that proceedings on an application under subsection (1) (referred to in this section as “enforcement proceedings”) are in progress in respect of any waterway or any part of a waterway, or that the court has in any such proceedings imposed any requirement on the Board, shall not prevent the Scottish Ministers from making an order in respect of that waterway or part under section 104(3) or 105(3A); but—
(a) except as provided in subsection (3) of this section, where such an order is made while enforcement proceedings are in progress, the court shall nevertheless determine those proceedings on the basis of the duty of the Board as it stood when the proceedings were instituted; and
(b) the making of such an order shall in no case absolve the Board from complying with any requirement which is imposed by the court in any enforcement proceedings.
(3) If a relevant order is pending at the time when enforcement proceedings are instituted, or if, at any time after enforcement proceedings have been instituted and before the court has imposed any requirement on the Board in the proceedings, the Scottish Ministers notify the Board that they are considering the making of a relevant order and give the court such a certificate as is mentioned in subsection (4)—
(a) the court shall not, so long as the order is pending, impose any requirement on the Board in those proceedings; and
(b) if the order is made, the court shall, in determining in those proceedings whether there has been a failure by the Board to discharge their duty, have regard only to the duty (if any) to which the Board are subject in consequence of the making of the order.
(4) The certificate referred to in subsection (3) is a certificate in writing to the effect that it appears to the Scottish Ministers that the imposition of any requirement on the Board on the basis of their existing duty would result in their incurring substantial expense and that, having regard to their financial position and their duty under section 18 of the Act of 1962 and section 41 of this Act, it would be unreasonable for them to bear that expense without a grant or further grant under section 43 of this Act.
(5) In subsection (3) “relevant order” means, in relation to any enforcement proceedings, an order under section 104(3) or 105(3A) of this Act in relation to the waterway or part of a waterway which is the subject of the proceedings; and for the purposes of that subsection an order is pending during the period of three months beginning with the day on which the Scottish Ministers notify the Board that they are considering the making of the order and, if before the expiration of that period notice of the proposed order is published under Schedule 13 to this Act, during any further period until the order is made or the Scottish Ministers notify the Board that it will not be made.
(6) As soon as may be after giving the Board any such notification as is mentioned in subsection (5), the Scottish Ministers shall give notice of that notification in the Edinburgh Gazette.
(7) For the purposes of this section enforcement proceedings shall be treated as instituted at the time when the summons beginning the proceedings is served on the Board.
106A Enforcement of maintenance duty – Canal & River Trust
(1) If, on an application by any person under this section to the High Court, the court determines that there has been, in respect of any waterway, a serious and persistent failure by Canal & River Trust to discharge the duty imposed on it by—
(a) section 105(1), or
(b) an order made under section 105(3),
the court may, subject to the provisions of this section, require Canal & River Trust to remedy that failure; but, save as aforesaid, neither subsection (1) of section 105 nor any order under subsection (3) of that section shall be construed as imposing any duty or liability enforceable by proceedings before any court to which Canal & River Trust would not otherwise be subject.
(2) The fact that proceedings on an application under subsection (1) (referred to in this section as “enforcement proceedings”) are in progress in respect of any waterway or any part of a waterway, or that the court has in any such proceedings imposed any requirement on Canal & River Trust, shall not prevent the Minister from making an order in respect of that waterway or part under section 104(3) or 105(3); but—
(a) except as provided in subsection (3) of this section, where such an order is made while enforcement proceedings are in progress, the court shall nevertheless determine those proceedings on the basis of the duty of Canal & River Trust as it stood when the proceedings were instituted; and
(b) the making of such an order shall in no case absolve Canal & River Trust from complying with any requirement which is imposed by the court in any enforcement proceedings.
(3) If a relevant order is pending at the time when enforcement proceedings are instituted, or if, at any time after enforcement proceedings have been instituted and before the court has imposed any requirement on Canal & River Trust in the proceedings, the Minister notifies Canal & River Trust that the Minister is considering the making of a relevant order and gives the court such a certificate as is mentioned in subsection (4)—
(a) the court shall not, so long as the order is pending, impose any requirement on Canal & River Trust in those proceedings; and
(b) if the order is made, the court shall, in determining in those proceedings whether there has been a failure by Canal & River Trust to discharge its duty, have regard only to the duty (if any) to which Canal & River Trust is subject in consequence of the making of the order.
(4) The certificate referred to in subsection (3) is a certificate in writing to the effect that it appears to the Minister that the imposition of any requirement on Canal & River Trust on the basis of its existing duty would result in its incurring substantial expense and that, having regard to its financial position, it would be unreasonable for it to bear that expense without a grant or further grant under section 43A of this Act.
(5) In subsection (3) “relevant order” means, in relation to any enforcement proceedings, an order under section 104(3) or 105(3) of this Act in relation to the waterway or part of a waterway which is the subject of the proceedings; and for the purposes of that subsection an order is pending during the period of three months beginning with the day on which the Minister notifies Canal & River Trust that the Minister is considering the making of the order and, if before the expiration of that period notice of the proposed order is published under Schedule 13 to this Act, during any further period until the order is made or the Minister notifies Canal & River Trust that it will not be made.
(6) As soon as may be after giving Canal & River Trust any such notification as is mentioned in subsection (5), the Minister shall give notice of the notification in the London Gazette.
(7) For the purposes of this section enforcement proceedings shall be treated as instituted atthe time when the claim form beginning the proceedings is served on Canal & River Trust.
(1) The duty of the Waterways Board under subsection (1) of section 10 of the Act of 1962 to provide services and facilities on the inland waterways owned or managed by them shall extend only to the commercial waterways and cruising waterways.
(2) It shall be the duty of the Board—
(a) to secure that each of the inland waterways comprised in their undertaking which is not a commercial waterway or cruising waterway is dealt with in the most economical manner possible (consistent, in the case of a waterway which is retained, with the requirements of public health and the preservation of amenity and safety), whether by retaining and managing the waterway, by developing or eliminating it, or by disposing of it; and
(b) to secure that the best possible financial return is obtained from any asset of the Board which is not an inland waterway or harbour and is not required in connection with the provision of services and facilities by the Board, whether by exploiting it, by developing it, or by disposing of it.
(3) Subsection (4) of the said section 10 (which provides that the duties of the Board under that section are not to be legally enforceable) shall apply also to the duty imposed on the Board by subsection (2) of this section.
(4)
108 Prevention of nuisance as respects certain waterways.
(1) Subject to subsection (3) of this section, any inland waterway in England or Wales comprised in the undertaking of Canal & River Trust which is not a commercial waterway or cruising waterway shall be deemed to be—
(a) a watercourse for the purposes of section 259 of the Public Health Act 1936; and
(b) land to which section 215 of the Town and Country Planning Act 1990 applies;
and the provisions of Part III of the Environmental Protection Act 1990, as they apply by virtue of this subsection, may be enforced by a county council as well as by a local authority as defined in that Act, and any local authority within the meaning of the said Act of 1990 (and not only the local planning authority) shall be entitled to enforce the provisions of the said section 215 as it applies by virtue of this subsection.
(2) Subject to subsection (3) of this section, any inland waterway in Scotland comprised in the undertaking of the Board which is not a commercial waterway or cruising waterway shall be deemed to be—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) land to which section 179 of the Town and Country Planning (Scotland) Act 1997 applies;
and any local authority within the meaning of the said Act of 1997 (and not only the local planning authority) shall be entitled to enforce the provisions of the said section 179 as it applies by virtue of this subsection.
(3) This section shall not apply to any waterway which has been closed to navigation under any local enactment before the date on which this section comes into force if the use of the waterway has been changed between the passing of that enactment and that date in pursuance of planning permission granted under Part III of the Town and Country Planning Act 1962 or Part II of the Town and Country Planning (Scotland) Act 1947; and and this section shall cease to apply to any waterway if the use thereof is changed after that date in pursuance of such permission as aforesaid.
(4) This section shall have effect to the exclusion of any provision for similar purposes in any local enactment passed before the date on which this section comes into force in relation to any waterway to which this section applies.
109 Power of certain bodies to maintain or take over waterways and connected works in Scotland.
(1) Without prejudice to their powers apart from this section, but subject to subsection (3) of this section, the Waterways Board shall have power—
(a) to enter into an agreement with any body to which this section applies for the maintenance by that body of any inland waterway comprised in the undertaking of the Board which is not a commercial waterway or cruising waterway, or of any part of, or of any works connected with, any such waterway;
(b) by agreement with any such body, to transfer to it any such waterway, part of a waterway or works as aforesaid belonging to the Board, together with any powers or obligations (whether statutory or otherwise) of the Board in respect thereof;
and any body to which this section applies shall have all such powers as are required to enable it to enter into and carry out any such agreement as aforesaid or as are required to be exercised by it in consequence of any such transfer as is mentioned in this subsection.
(2) The bodies to which this section applies are as follows—
(a) a local authority;
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) a public gas supplier within the meaning of Part I of the Gas Act 1986;
(e) a public electricity supplier within the meaning of Part I of the Electricity Act 1989;
(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
and, as respects any particular agreement or transfer, any other body having public or charitable objects which is certified by the Scottish Ministers as a body appearing to them to be capable of discharing the responsibilities falling on the body in consequence of that agreement or transfer.
(3) Subject to subsection (5) of this section, no such agreement or transfer as is mentioned in subsection (1) of this section shall be made with or to—
(a) any local authority unless what is to be maintained or transferred—
(i) is situated in the area of the authority; or
(ii) though not situated in that area, is so situated that persons residing in that area have convenient access to it;
(b) Scottish Water unless the Scottish Ministers have consented to the agreement or transfer;
and the powers under this section of Scottish Water shall be exercisable only for the purposes of their water undertaking and with the consent of the Scottish Ministers.
(4) Any agreement under this section whereby a waterway or part of a waterway is to be maintained by, or transferred to, a body to which this section applies may include provision for securing that the body in question makes the waterway or part available for public use.
(5) The Board may make an agreement for maintenance or transfer under this section with two or more bodies jointly on such terms as to the sharing of expenses between those bodies and otherwise as those bodies may agree; and, notwithstanding subsection (3)(a)(i) of this section (but without prejudice to subsection (3)(a)(ii) of this section), a local authority may be a party to such an agreement if part of what is to be maintained or transferred is situated in their area and the remainder in the area or areas of one or more other authorities (whether or not local authorities) who are also parties to the agreement.
111 Access agreements and orders as respects canals other than commercial waterways and cruising waterways.
Subsections (2) and (3) of section 16 of the Countryside Act 1968 (which enable access agreements and access orders to be made under Part V of the National Parks and Access to the Countryside Act 1949 in respect of canals and of certain land held therewith) shall apply as respects, and as respects land held with, any canal or part of a canal owned or managed by Canal & River Trust which is not for the time being a commercial waterway or a cruising waterway; and accordingly in subsection (6)(c) of that section (which prevents the said subsections (2) and (3) from applying where the canal or part of a canal is owned or managed by the Board) there shall be added at the end the words “ which is for the time being a commercial waterway of a cruising waterway within the meaning of section 104 of the Transport Act 1968 ”.
112 Power to extinguish statutory rights and obligations in respect of canals not comprised in undertaking of Board or Canal & River Trust.
(1) In the case of any canal which is not comprised in the undertaking of the Waterways Board or Canal & River Trust, the Minister, or, in the case of a canal in Scotland, the Scottish Ministers, may by order direct all or any of the following, that is to say—
(a) that any local enactment passed with respect to that canal shall cease to have effect so far as it confers any public or private right of navigation over that canal;
(b) that any such enactment shall cease to have effect so far as it imposes any duty to maintain that canal for the purpose of navigation (including any duty to supply, or maintain a supply of, water for the canal for that purpose);
(c) that section 17 of the Regulation of Railways Act 1873 if applicable to that canal, shall cease to apply to it.
(2) An order under this section in respect of any canal may be made on the application of the person who owns or manages the canal, on the application of any local authority or water Scottish Water or any local authority in whosethe National Rivers Authority or any local authority in whose area the canal is situated, or without any application being made.
(3) An order under this section in respect of any canal—
(a) shall specify the person, whether the person who owns or manages the canal, a local authority, a water authority Scottish Water or thelocal authority, the National Rivers Authority or the authority making the order , by whom any such compensation as is mentioned in subsection (4) of this section is to be paid;
(b) may confer on a person specified in the order power to authorise any use of the canal which would have been authorised by a statutory right of navigation which by virtue of the order ceases to be exercisable as respects the canal;
(c) may make provision, in relation to the canal or any works connected therewith, for purposes corresponding to those of section 109 of this Act; and
(d) may include such incidental or supplementary provisions as the authority making the order thinks fit, including provisions for applying section 259 of the Public Health Act 1936 and section 215 of the Town and Country Planning Act 1990, or, as the case may be, ... section 179 of the Town and Country Planning (Scotland) Act 1997 to the canal.
(4) Any person who suffers loss by reason of the extinguishment by virtue of an order under this section of any private right shall be entitled to be paid by the person specified in that behalf in the order compensation to be determined, in case of dispute, by the appropriate tribunal; and the tribunal shall, in determining the compensation, take into account any contractual right offered by the person who owns or manages the canal in substitution for the right which is extinguished.
(5) Schedule 13 to this Act shall have effect in relation to the making of any order under this section, and any such order shall , in the case of an order made by the Minister, be subject to annulment in pursuance of a resolution of either House of Parliament, and in the case of an order made by the Scottish Ministers, is subject to the negative procedure.
(6) In this section “canal” includes any navigation which has been made under, or in respect of which tolls may be levied by virtue of, any enactment, and references to a canal include references to part of a canal.
(6A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7)