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Part 2S Bus services

[F1CHAPTER 2]S[F1Local services franchises]

Textual Amendments

F1Pt. 2 Ch. 2 substituted for ss. 13-27 and cross-heading (4.12.2023) by Transport (Scotland) Act 2019 (asp 17), ss. 38(2), 130(2) (with s. 126); S.S.I. 2023/250, sch.

Financial and competition provisionsS

39 PenaltiesS

(1)Where the traffic commissioner is satisfied that the operator of a local service has, without reasonable excuse—

(a)failed to operate a local service registered under section 6 of the 1985 Act;

(b)operated a local service in contravention of that section or section [F23F(1) or 13B(1)(b) or (3)] of this Act; F3...

[F4(ba)failed to comply with a requirement under section 6ZA of the 1985 Act,]

[F5(bb)failed to comply with a requirement to provide information (including a requirement to provide it within a specified time or in a specified form) under section 3K(2) or 13R(2),]

(c)failed to comply with section 32(1) or 34(3) of this Act [F6; or ]

[F6(d)failed to comply with a requirement of regulations made under section 181A of the Equality Act 2010,]

the commissioner may impose a penalty on the operator.

(2)Subject to subsection (3) below, a penalty imposed under subsection (1) above shall be of such amount as the traffic commissioner thinks fit in all the circumstances of the case.

(3)The amount of a penalty mentioned in subsection (2) above shall not exceed—

(a)£550; or

(b)such other amount as the Scottish Ministers may by order specify,

multiplied by the total number of vehicles which the operator is licensed to use under all the PSV operator’s licences held by him.

(4)Any penalty imposed under subsection (1) above shall be payable to the Scottish Ministers.

(5)Where a penalty has been imposed on an operator under subsection (1) above, the traffic commissioner shall forthwith give notice in writing to—

(a)the Scottish Ministers; and

(b)the operator.

[F7(5A)Any operator on whom a penalty has been imposed under any paragraph of subsection (1) above except paragraph (d) may appeal to the Upper Tribunal for Scotland against the imposition of the penalty.

(5B)On an appeal under subsection (5A), the Upper Tribunal may—

(a)dismiss the appeal, or

(b)allow the appeal and quash the imposition of the penalty.

(5C)If the Upper Tribunal quashes the imposition of the penalty, it must—

(a)reconsider the matter itself and may impose a penalty on the operator if satisfied that the operator has, without reasonable excuse, behaved as mentioned in the paragraph of subsection (1) under which the traffic commissioner imposed the penalty on the operator, or

(b)remit the matter to the traffic commissioner to make a new decision as to whether to impose a penalty under subsection (1).

(5D)The Upper Tribunal may make such other order on an appeal under subsection (5A) as it considers appropriate.

(5E)When considering an appeal under subsection (5A), including any reconsideration of the matter under subsection (5C)(a), the Upper Tribunal may not take into consideration any circumstances which did not exist at the time of the decision to impose the penalty which is the subject of the appeal.

(5F)Subsections (3) and (4) apply to the imposition of a penalty by the Upper Tribunal under subsection (5C)(a) as they apply to the imposition of a penalty by the traffic commissioner under subsection (1).

(5G)The traffic commissioner must give notice in writing to the Scottish Ministers where a penalty has been quashed or imposed by—

(a)the Upper Tribunal under—

(i)subsection (5B) or (5C)(a), or

(ii)section 44 of the Tribunals (Scotland) Act 2014 (“the 2014 Act”) in a review of a decision under subsection (5B) or (5C), or

(b)the Court of Session under section 49 of the 2014 Act on an appeal against a decision under—

(i)subsection (5B) or (5C), or

(ii)section 44 of the 2014 Act in a review of a decision under subsection (5B) or (5C).]

(6)Any operator on whom a penalty has been imposed under subsection [F8(1)(d)] above may appeal to the Transport Tribunal against the imposition of the penalty.

(7)Any amount due under this section shall be recoverable as a civil debt.

Textual Amendments

F2Words in s. 39(1)(b) substituted (4.12.2023) by Transport (Scotland) Act 2019 (asp 17), s. 130(2), sch. para. 3(4)(a) (with s. 126); S.S.I. 2023/250, sch.

F3Word in s. 39(1) omitted (26.6.2018) by virtue of Bus Services Act 2017 (c. 21), ss. 17(6)(a), 26(2); S.I. 2018/758, reg. 2

F5S. 39(1)(bb) inserted (4.12.2023) by Transport (Scotland) Act 2019 (asp 17), s. 130(2), sch. para. 3(4)(b) (with s. 126) (as amended (27.11.2023) by S.S.I. 2023/347, regs. 1(1), 2(7)(a)); S.S.I. 2023/250, sch.

F6S. 39(1)(d) and word inserted (26.6.2018) by Bus Services Act 2017 (c. 21), ss. 17(6)(b), 26(2); S.I. 2018/758, reg. 2