text:
Citation, commencement and effect
1
1
This Order may be cited as the Value Added Tax (Buildings and Land) Order 2008 and comes into force on 1st June 2008.
2
This Order, apart from article 4, has effect in relation to supplies made on or after 1st June 2008.
3
Article 4 has effect in relation to supplies made on or after 1st June 2020.
4
Paragraphs (2) and (3) are subject to Schedule 2 (transitional provisions and savings).
Rewrite of Schedule 10 to VATA 1994
2
For Schedule 10 to VATA 1994 (buildings and land) substitute —
SCHEDULE 10
BUILDINGS AND LAND
Section 51
PART 1 THE OPTION TO TAX LAND
Introduction
Overview of the option to tax
1
1
This Part of the Schedule makes provision for a person to opt to tax any land.
2
The effect of the option to tax is dealt with in paragraph 2 (exempt supplies become taxable), as read with paragraph 3.
3
Grants are excluded from the effect of paragraph 2 by —
a
paragraph 5 (dwellings designed or adapted, and intended for use, as dwelling etc),
b
paragraph 6 (conversion of buildings for use as dwelling etc),
c
paragraph 7 (charities),
d
paragraph 8 (residential caravans),
e
paragraph 9 (residential houseboats),
f
paragraph 10 (relevant housing associations), and
g
paragraph 11 (grant to individual for construction of dwelling).
4
Paragraphs 12 to 17 (anti-avoidance: developers of land etc) provide for certain supplies to which any grant gives rise to be excluded from the effect of paragraph 2.
5
Paragraphs 18 to 30 deal with —
a
the scope of the option to tax,
b
the day from which the option to tax has effect,
c
notification requirements,
d
elections to opt to tax land subsequently acquired,
e
the revocation of the option,
f
the effect of the option to tax in relation to new buildings, and
g
requirements for prior permission in the case of exempt grants made before the exercise of an option to tax.
6
Paragraphs 31 to 34 deal with definitions which apply for the purposes of this Part, as well as other supplemental matters.
The option to tax
Effect of the option to tax: exempt supplies become taxable
2
1
This paragraph applies if —
a
a person exercises the option to tax any land under this Part of this Schedule, and
b
a grant is made in relation to the land at any time when the option to tax it has effect.
2
If the grant is made —
a
by the person exercising that option, or
b
by a relevant associate (if that person is a body corporate),
the grant does not fall within Group 1 of Schedule 9 (exemptions for land).
3
For the meaning of “relevant associate”, see paragraph 3.
Meaning of “relevant associate”
3
1
This paragraph explains for the purposes of this Part of this Schedule what is meant by a “relevant associate” in a case where a body corporate (“the opter”) exercises an option to tax in relation to any building or land.
2
A body corporate is a relevant associate of the opter if under sections 43A to 43D (groups of companies) the body corporate —
a
was treated as a member of the same group as the opter at the time when the option first had effect,
b
has been so treated at any later time when the opter had a relevant interest in the building or land, or
c
has been treated as a member of the same group as a body corporate within paragraph (a) or (b) of this sub-paragraph at a time when that body had a relevant interest in the building or land.
3
But a body corporate ceases to be a relevant associate of the opter in relation to the building or land in the following circumstances.
4
The body corporate ceases to be a relevant associate of the opter in relation to the building or land at the time when all of the following conditions are first met —
a
the body corporate has no relevant interest in the building or land and no part of any consideration payable in respect of any disposal by the body corporate of such an interest is unpaid,
b
the body corporate or the opter is not treated under sections 43A to 43D as a member of the group mentioned above, and
c
the body corporate is not connected with any person who has a relevant interest in the building or land where that person is the opter or another relevant associate of the opter.
5
The body corporate also ceases to be a relevant associate of the opter in relation to the building or land if the body corporate —
a
meets conditions specified in a public notice (see paragraph 4), or
b
gets the prior permission of the Commissioners (also, see that paragraph).
The time when the body corporate ceases to be a relevant associate of the opter is determined in accordance with that paragraph.
6
In this paragraph “relevant interest in the building or land” means an interest in, right over or licence to occupy the building or land (or any part of it).
Permission for a body corporate to cease to be a relevant associate of the opter
4
1
This paragraph applies for the purposes of paragraph 3(5) in relation to a body corporate which has been a relevant associate of the opter.
2
If the conditions specified in the public notice under paragraph 3(5)(a) are met in relation to the body corporate, it ceases to be a relevant associate of the opter only if notification of those conditions being met is given to the Commissioners.
3
The notification must —
a
be made in a form specified in a public notice,
b
state the day from which the body corporate is to cease to be a relevant associate of the opter (which may not be before the day on which the notification is given),
c
contain a statement by the body corporate certifying that, on that day, the conditions specified in the public notice under paragraph 3(5)(a) are met in relation to it, and
d
contain other information specified in a public notice.
4
An application for the prior permission of the Commissioners must —
a
be made in a form specified in a public notice,
b
contain a statement by the body corporate certifying which (if any) of the conditions specified in the public notice under paragraph 3(5)(a) are met in relation to it, and
c
contain other information specified in a public notice.
5
If the body corporate gets the prior permission of the Commissioners, it ceases to be a relevant associate of the opter from —
a
the day on which the Commissioners give their permission, or
b
such earlier or later day as they specify in their permission.
6
The Commissioners may specify an earlier day only if —
a
the body corporate has purported to give a notification of its ceasing to be a relevant associate of the opter,
b
the conditions specified in the public notice are not, in the event, met in relation to the body corporate, and
c
the Commissioners consider that the grounds on which those conditions are not so met are insignificant.
7
The day specified may be the day from which the body corporate would have ceased to be a relevant associate of the opter if those conditions had been so met.
8
The Commissioners may specify conditions subject to which their permission is given and, if any of those conditions are broken, they may treat the application as if it had not been made.
Exclusions from effect of option to tax
Dwellings designed or adapted, and intended for use, as dwelling etc
5
1
An option to tax has no effect in relation to any grant in relation to a building or part of a building if the building or part of the building is designed or adapted, and is intended, for use —
a
as a dwelling or number of dwellings, or
b
solely for a relevant residential purpose.
2
In relation to the expression “relevant residential purpose”, see the certification requirement imposed as a result of the application of Note (12) of Group 5 of Schedule 8 by paragraph 33 of this Schedule.
Conversion of buildings for use as dwelling etc
6
1
An option to tax has no effect in relation to any grant made to a person (“the recipient”) in relation to a building or part of a building if the recipient certifies that the building or part of the building is intended for use —
a
as a dwelling or number of dwellings, or
b
solely for a relevant residential purpose.
2
The recipient must give the certificate to the person making the grant (“the seller”) —
a
within the period specified in a public notice, or
b
if the seller agrees, at any later time before the seller makes a supply to which the grant gives rise.
3
The recipient may give the certificate to the seller only if the recipient —
a
intends to use the building or part of the building as mentioned above,
b
has the relevant conversion intention, or
c
is a relevant intermediary.
4
The recipient is a relevant intermediary if —
a
the recipient intends to dispose of the relevant interest to another person, and
b
that other person gives the recipient a certificate stating that the other person has the relevant conversion intention or the relevant disposal intention.
5
For this purpose a person has the relevant disposal intention if —
a
the person intends to dispose of the relevant interest to a third person, and
b
the third person gives a qualifying certificate to the person.
6
A person (P) gives a qualifying certificate to another if P gives a certificate to that other person stating that P has the relevant conversion intention or intends to dispose of the relevant interest to another person (Q) who has given a certificate to P stating —
a
that Q has the relevant conversion intention, or
b
that Q intends to dispose of the relevant interest to another person who has given a qualifying certificate to Q,
and so on (in the case of further disposals of the relevant interest).
7
In this paragraph —
“the relevant conversion intention”, in relation to a person, means an intention of the person to convert the building or part of the building with a view to its being used as mentioned above, and
“the relevant interest”, in relation to any interest in the building or part of the building to which the grant gives rise, means the whole of that interest.
8
For the purposes of this paragraph a building or part of a building is not to be regarded as intended for use as a dwelling or number of dwellings at any time if there is intended to be a period before that time during which it will not be so used (but disregarding use for incidental or other minor purposes).
9
For the purposes of this paragraph the reference to use solely for a relevant residential purpose is to be read without regard to Note (12) of Group 5 of Schedule 8 (which would otherwise apply as a result of paragraph 33 of this Schedule).
10
The Commissioners may publish a notice for the purposes of this paragraph —
a
preventing a person from giving any certificate under this paragraph unless the person meets conditions specified in the notice,
b
specifying the form in which any certificate under this paragraph must be made, and
c
specifying any information which any certificate under this paragraph must contain.
Charities
7
1
An option to tax has no effect in relation to any grant made to a person in relation to a building or part of a building intended by the person for use —
a
solely for a relevant charitable purpose, but
b
not as an office.
2
In relation to the expression “relevant charitable purpose”, see the certification requirement imposed as a result of the application of Note (12) of Group 5 of Schedule 8 by paragraph 33 of this Schedule.
Residential caravans
8
1
An option to tax has no effect in relation to any grant made in relation to a pitch for a residential caravan.
2
A caravan is not a residential caravan if residence in it throughout the year is prevented by the terms of a covenant, statutory planning consent or similar permission.
Residential houseboats
9
1
An option to tax has no effect in relation to any grant made in relation to facilities for the mooring of a residential houseboat.
“Mooring” includes anchoring or berthing.
2
In this paragraph —
a
“houseboat” means a houseboat within the meaning of Group 9 of Schedule 8, and
b
a houseboat is not a residential houseboat if residence in it throughout the year is prevented by the terms of a covenant, statutory planning consent or similar permission.
Relevant housing associations
10
1
An option to tax has no effect in relation to any grant made to a relevant housing association in relation to any land if the association certifies that the land is to be used (after any necessary demolition work) for the construction of a building or buildings intended for use —
a
as a dwelling or number of dwellings, or
b
solely for a relevant residential purpose.
2
The association must give the certificate to the person making the grant (“the seller”) —
a
within the period specified in a public notice, or
b
if the seller agrees, at any later time before the seller makes a supply to which the grant gives rise.
3
In this paragraph “relevant housing association” means —
a
a registered social landlord within the meaning of Part 1 of the Housing Act 1996 (English or Welsh registered social landlords),
b
a registered social landlord within the meaning of the Housing (Scotland) Act 2001 (Scottish registered social landlords), or
c
a registered housing association within the meaning of Part 2 of the Housing (Northern Ireland) Order 1992 (Northern Irish registered housing associations).
4
For the purposes of this paragraph the reference to use solely for a relevant residential purpose is to be read without regard to Note (12) of Group 5 of Schedule 8 (which would otherwise apply as a result of paragraph 33 of this Schedule).
5
The Commissioners may publish a notice for the purposes of this paragraph —
a
specifying the form in which any certificate under this paragraph must be made, and
b
specifying any information which any certificate under this paragraph must contain.
Grant to individual for construction of dwelling
11
An option to tax has no effect in relation to any grant made to an individual if —
a
the land is to be used for the construction of a building intended for use by the individual as a dwelling, and
b
the construction is not carried out in the course or furtherance of a business carried on by the individual.
Anti-avoidance
Developers of exempt land
12
1
A supply is not, as a result of an option to tax, a taxable supply if —
a
the grant giving rise to the supply was made by a person (“the grantor”) who was a developer of the land, and
b
the exempt land test is met.
2
The exempt land test is met if, at the time when the grant was made (or treated for the purposes of this paragraph as made), the relevant person intended or expected that the land —
a
would become exempt land (whether immediately or eventually and whether or not as a result of the grant), or
b
would continue, for a period at least, to be exempt land.
3
“The relevant person” means —
a
the grantor, or
b
a development financier.
4
For the meaning of a development financier, see paragraph 14.
5
For the meaning of “exempt land”, see paragraphs 15 and 16.
6
If a supply is made by a person other than the person who made the grant giving rise to it —
a
the person making the supply is treated for the purposes of this paragraph as the person who made the grant giving rise to it, and
b
the grant is treated for the purposes of this paragraph as made at the time when that person made the first supply arising from the grant.
7
For a special rule in the case of a grant made on or after 19th March 1997 and before 10th March 1999, see paragraph 17.
8
Nothing in this paragraph applies in relation to a supply arising from —
a
a grant made before 26th November 1996, or
b
a grant made on or after that date but before 30th November 1999, in pursuance of a written agreement entered into before 26th November 1996, on terms which (as terms for which provision was made by that agreement) were fixed before 26th November 1996.
Meaning of grants made by a developer
13
1
This paragraph applies for the purposes of paragraph 12.
2
A grant made by any person (“the grantor”) in relation to any land is made by a developer of the land if —
a
the land is, or was intended or expected to be, a relevant capital item (see sub-paragraphs (3) to (5)), and
b
the grant is made at an eligible time as respects that capital item (see sub-paragraph (6)).
3
The land is a relevant capital item if —
a
the land, or
b
the building or part of a building on the land,
is a capital item in relation to the grantor.
4
The land was intended or expected to be a relevant capital item if the grantor, or a development financier, intended or expected that —
a
the land, or
b
a building or part of a building on, or to be constructed on, the land,
would become a capital item in relation to the grantor or any relevant transferee.
5
A person is a relevant transferee if the person is someone to whom the land, building or part of a building was to be transferred —
a
in the course of a supply, or
b
in the course of a transfer of a business or part of a business as a going concern.
6
A grant is made at an eligible time as respects a capital item if it is made before the end of the period provided in the relevant regulations for the making of adjustments relating to the deduction of input tax as respects the capital item.
7
But if —
a
a person other than the grantor is treated by paragraph 12(6) as making the grant of the land, and
b
the grant is consequently treated as made at what would otherwise be an ineligible time,
the grant is treated instead as if were not made at an ineligible time.
8
In this paragraph a “capital item”, in relation to any person, means an asset falling, in relation to the person, to be treated as a capital item for the purposes of the relevant regulations.
9
In this paragraph “the relevant regulations”, as respects any item, means regulations under section 26(3) and (4) providing for adjustments relating to the deduction of input tax to be made as respects that item.
Meaning of “development financier”
14
1
This paragraph explains for the purposes of paragraphs 12 to 17 what is meant, in relation to the grantor of any land, by a development financier.
2
A “development financier” means a person who —
a
has provided finance for the grantor’s development of the land, or
b
has entered into any arrangement to provide finance for the grantor’s development of the land,
with the intention or in the expectation that the land will become exempt land or continue (for a period at least) to be exempt land.
3
For the purposes of this paragraph references to finance being provided for the grantor’s development of the land are to doing (directly or indirectly) any one or more of the following —
a
providing funds for meeting the whole or any part of the cost of the grantor’s development of the land,
b
procuring the provision of such funds by another,
c
providing funds for discharging (in whole or in part) any liability that has been or may be incurred by any person for or in connection with the raising of funds to meet the cost of the grantor’s development of the land, and
d
procuring that any such liability is or will be discharged (in whole or in part) by another.
4
For the purposes of this paragraph references to providing funds for a particular purpose are to —
a
the making of a loan of funds that are or are to be used for that purpose,
b
the provision of any guarantee or other security in relation to such a loan,
c
the provision of any of the consideration for the issue of any shares or other securities issued wholly or partly for raising those funds,
d
the provision of any consideration for the acquisition by any person of any shares or other securities issued wholly or partly for raising those funds, or
e
any other transfer of assets or value as a consequence of which any of those funds are made available for that purpose.
5
For the purposes of this paragraph references to the grantor’s development of the land are to the acquisition by the grantor of the asset which —
a
consists in the land or a building or part of a building on the land, and
b
is, or (as the case may be) was intended or expected to be, a relevant capital item in relation to the grantor (within the meaning of paragraph 13).
6
For this purpose the reference to the acquisition of the asset includes —
a
its construction or reconstruction, and
b
the carrying out in relation to it of any other works by reference to which it is, or was intended or expected to be, a relevant capital item (within the meaning of paragraph 13).
7
In this paragraph “arrangement” means any agreement, arrangement or understanding (whether or not legally enforceable).
Meaning of “exempt land”: basic definition
15
1
This paragraph explains for the purposes of paragraphs 12 to 17 what is meant by exempt land.
2
Land is exempt land if, at any time before the end of the relevant adjustment period as respects that land —
a
a relevant person is in occupation of the land, and
b
that occupation is not wholly, or substantially wholly, for eligible purposes.
3
Each of the following is a relevant person —
a
the grantor,
b
a person connected with the grantor,
c
a development financier, and
d
a person connected with a development financier.
4
The relevant adjustment period as respects any land is the period provided in the relevant regulations (within the meaning of paragraph 13) for the making of adjustments relating to the deduction of input tax as respects the land.
5
For the purposes of this paragraph any question whether a person’s occupation of any land is “wholly, or substantially wholly,” for eligible purposes is to be decided by reference to criteria specified in a public notice.
Meaning of “exempt land”: eligible purposes
16
1
This paragraph explains what is meant for the purposes of paragraph 15 by a person occupying land for eligible purposes.
2
A person cannot occupy land at any time for eligible purposes unless the person is a taxable person at that time (but this rule is qualified by sub-paragraphs (5) and (6)).
3
A taxable person occupies land for eligible purposes so far as the occupation is for the purpose of making creditable supplies (but this rule is qualified by sub-paragraphs (5) to (7)).
4
“Creditable supplies” means supplies which —
a
are or are to be made in the course or furtherance of a business carried on by the person, and
b
are supplies of such a description that the person would be entitled to a credit for any input tax wholly attributable to those supplies.
5
Any occupation of land by a body to which section 33 applies (local authorities etc) is occupation of the land for eligible purposes so far as the occupation is for purposes other than those of a business carried on by the body.
6
Any occupation of land by a Government department (within the meaning of section 41 ) is occupation of the land for eligible purposes.
7
Any occupation of land by a person is occupation of the land for eligible purposes in so far as the occupation arises merely by reference to any automatic teller machine of the person which is fixed to the land.
8
If a person occupying land —
a
holds the land in order to put it to use for particular purposes, and
b
does not occupy it for any other purpose,
the person is treated for the purposes of this paragraph, for so long as the conditions in paragraphs (a) and (b) continue to be met, as occupying the land for the purposes for which the person proposes to use it.
9
If land is in the occupation of a person (“A”) who —
a
is not a taxable person, but
b
is a person whose supplies are treated for the purposes of this Act as made by another person (“B”) who is a taxable person,
the land is treated for the purposes of this paragraph as if A and B were a single taxable person.
10
For the purposes of this paragraph a person occupies land —
a
whether the person occupies it alone or together with one or more other persons, and
b
whether the person occupies all of the land or only part of it.
Paragraph 12: grants made on or after 19th March 1997 and before 10th March 1999
17
1
A grant in relation to land which was made —
a
on or after 19th March 1997, and
b
before 10th March 1999,
is treated for the purposes of paragraph 12 as made on 10th March 1999 if, at the time of the grant, the capital item test was met.
2
The capital item test was met if the person making the grant, or a development financier, intended or expected that —
a
the land, or
b
a building or part of a building on, or to be constructed on, the land,
would become a capital item in relation to the grantor or any relevant transferee but it had not become such an item.
3
For the purposes of that test “capital item” and “relevant transferee” have the meaning given by paragraph 13.
Scope of the option, its duration, notification etc
Scope of the option
18
1
An option to tax has effect in relation to the particular land specified in the option.
2
If an option to tax is exercised in relation to —
a
a building, or
b
part of a building,
the option has effect in relation to the whole of the building and all the land within its curtilage.
3
If an option to tax —
a
is exercised in relation to any land, but
b
is not exercised by reference to a building or part of a building,
the option is nonetheless taken to have effect in relation to any building which is (or is to be) constructed on the land (as well as in relation to land on which no building is constructed).
4
For the purposes of this paragraph —
a
buildings linked internally or by a covered walkway, and
b
complexes consisting of a number of units grouped around a fully enclosed concourse,
are treated as a single building.
5
But for those purposes —
a
buildings which are linked internally are not treated as a single building if the internal link is created after the buildings are completed, and
b
buildings which are linked by a covered walkway are not treated as a single building if the walkway starts to be constructed after the buildings are completed.
6
In this paragraph a “building” includes —
a
an enlarged or extended building,
b
an annexe to a building, and
c
a planned building.
7
In this paragraph “covered walkway” does not include a covered walkway to which the general public has reasonable access.
The day from which the option has effect
19
1
An option to tax has effect from —
a
the start of the day on which it is exercised, or
b
the start of any later day specified in the option.
2
But if, when an option to tax is exercised, the person exercising the option intends to revoke it in accordance with paragraph 23 (revocation of option: the “cooling off” period), the option is treated for the purposes of this Act as if it had never been exercised.
3
An option to tax may be revoked in accordance with paragraph 22(2) or (3) and any of paragraphs 23 to 25, but not otherwise.
4
This paragraph needs to be read with —
a
paragraph 20 (requirement to notify the option), and
b
paragraph 29(3) (application for prior permission in the case of an exempt grant before the exercise of an option to tax).
Requirement to notify the option
20
1
An option to tax has effect only if —
a
notification of the option is given to the Commissioners within the allowed time, and
b
that notification is given together with such information as the Commissioners may require.
2
Notification of an option is given within the allowed time if (and only if) it is given —
a
before the end of the period of 30 days beginning with the day on which the option was exercised, or
b
before the end of such longer period beginning with that day as the Commissioners may in any particular case allow.
3
The Commissioners may publish a notice for the purposes of this paragraph specifying —
a
the form in which a notification under this paragraph must be made, and
b
the information which a notification under this paragraph must contain.
4
Notification of an option to tax does not need to be given under this paragraph if the option is treated as exercised in accordance with paragraph 29(3).
Real estate elections: elections to opt to tax land subsequently acquired
21
1
A person (E) may make an election (a “real estate election”) for this paragraph to have effect in relation to —
a
relevant interests in any building or land which E acquires after the election is made, and
b
relevant interests in any building or land which a body corporate acquires after the election is made at a time when the body is a relevant group member.
2
If E makes a real estate election —
a
E is treated for the purposes of this Part of this Schedule as if E had exercised an option to tax in relation to the building or land in which the relevant interest is acquired,
b
that option is treated for those purposes as if it had been exercised on the day on which the acquisition was made and as if it had effect from the start of that day, and
c
paragraph 20 does not apply in relation to that option,
but this sub-paragraph is subject to sub-paragraphs (3) to (5).
3
A person (P) is not to be treated as a result of this paragraph as exercising an option to tax in relation to any building or land where at any time —
a
P, or any body corporate which was a relevant group member at that time, exercises an option to tax in relation to the building (or part of the building) or land apart from this paragraph, and
b
that option has effect from a time earlier than the time from which an option to tax exercised by P in relation to the building or land would otherwise have been treated as having effect as a result of this paragraph.
4
A person (P) is not to be treated as a result of this paragraph as exercising an option to tax in relation to any building or land in which a relevant interest is acquired (“the later interest”) if —
a
the person making the acquisition in question held another relevant interest in that building or land before P makes a real estate election, and
b
the person making the acquisition in question continues to hold that other relevant interest at the time when the later interest is acquired.
5
A person is not to be treated as a result of this paragraph as exercising an option to tax in relation to any building or land if —
a
a relevant interest in the building or land is acquired as mentioned in sub-paragraph (1), and
b
on the relevant assumptions the case would fall within paragraph 28 (pre-option exempt grants: requirement for prior permission before exercise of option to tax).
6
The relevant assumptions are that —
a
the effect of this paragraph is disregarded, and
b
the day from which the person would want the option to tax to have effect for the purposes of paragraphs 28 or 29(3) is the day on which the relevant interest is acquired.
7
A real estate election has effect only if —
a
notification of the election is given to the Commissioners before the end of the period of 30 days beginning with the day on which it was made or such longer period as the Commissioners may in any particular case allow,
b
the notification is made in a form specified in a public notice, and
c
the notification contains information so specified.
8
The Commissioners may at any time require a person who has made a real estate election to give to the Commissioners information specified in a public notice before the end of —
a
the period of 30 days beginning with that time, or
b
such longer period as the Commissioners may in any particular case allow.
9
If a person (P) does not comply with that requirement —
a
the Commissioners may revoke the election, and
b
that revocation has effect in relation to relevant interests in any building or land acquired after the notified time by P or a body corporate which is a relevant group member at the time of acquisition.
“The notified time” means the time specified in a notification given by the Commissioners to P (which may not be before the notification is given).
10
A real estate election may not be revoked except in accordance with sub-paragraph (9).
11
If a real estate election made by a person (P) is revoked in accordance with that sub-paragraph, another real estate election may be made at any subsequent time by —
a
P, or
b
any body corporate which is a relevant group member at that subsequent time,
but only with the prior permission of the Commissioners.
12
In this paragraph —
“relevant group member”, in relation to any person making a real estate election and any time, means a body corporate which is treated under sections 43A to 43D as a member of the same group as that person at that time, and
“relevant interest”, in relation to any building or land, means any interest in, right over or licence to occupy the building or land (or any part of it).
Real estate elections: supplementary
22
1
This paragraph applies if, at any time (“the relevant time”), a person (E) makes a real estate election under paragraph 21.
2
An option to tax exercised in relation to any building or part of any building before the relevant time by —
a
E, or
b
any relevant group member,
is treated for the purposes of this Part of this Schedule as if it had been revoked from the relevant time if, at that time, neither E nor any relevant group member has a relevant interest in that building.
3
An option to tax exercised in relation to any land (otherwise than by reference to any building or part of a building) before the relevant time by —
a
E, or
b
any relevant group member,
is treated for the purposes of this Part of this Schedule as if it had been revoked in accordance with sub-paragraph (4) from the relevant time if, at that time, neither E nor any relevant group member has a relevant interest in that land, or E or any relevant group member has a relevant interest in only some of it.
4
The option is treated for the purposes of this Part of this Schedule as if it had been revoked in relation to —
a
that land, or
b
the parts of that land in which neither E nor any relevant group member has a relevant interest at the relevant time,
as the case may be.
5
Sub-paragraphs (2) and (3) are subject to paragraph 26 (anti-avoidance).
6
An option to tax (“the original option”) exercised in relation to any land (otherwise than by reference to any building or part of a building) before the relevant time by —
a
E, or
b
any relevant group member,
may, in circumstances specified in a public notice, be converted by E into separate options to tax if, at the relevant time, E or any relevant group member has a relevant interest in the land or any part of it.
7
The original option is converted into separate options to tax different parcels of land comprised in that land or part.
8
Those separate options to tax are treated for the purposes of this Part of this Schedule —
a
as if they had been exercised by E, and
b
as if they had effect from the time from which the original option had effect.
9
But —
a
those separate options to tax are treated for the purposes of paragraph 3(2) as if they had effect from the relevant time, and
b
paragraph 23 (revocation of an option: the “cooling off” period) does not apply to those separate options to tax.
10
The notification of the election given by E must identify —
a
the separate options to tax treated as exercised by E as a result of sub-paragraphs (6) to (8), and
b
the different parcels of land in relation to which those separate options to tax are treated as having effect.
11
In this paragraph —
a
any reference to any relevant group member is to a body corporate which is a relevant group member at the relevant time, and
b
any reference to any relevant group member, in relation to any relevant interest in any building or land (or any part of it), is to any relevant group member regardless of whether it has exercised an option to tax the building or land (or any part of it).
12
In this paragraph “relevant group member” and “relevant interest”, have the meaning given by paragraph 21.
13
In this paragraph any reference to a real estate election under paragraph 21 does not include an election which is made under sub-paragraph (11) of that paragraph.
Revocation of option: the “cooling off” period
23
1
An option to tax any land exercised by any person (“the taxpayer”) may be revoked with effect from the day on which it was exercised if —
a
the time that has lapsed since the day on which the option had effect is less than 6 months,
b
the taxpayer has not used the land since the option had effect,
c
no tax has become chargeable as a result of the option,
d
there is no relevant transfer of a business as a going concern (see sub-paragraph (2)), and
e
notification of the revocation is given to the Commissioners (see sub-paragraph (3)).
2
There is no relevant transfer of a business as a going concern if, since the option had effect, no grant in relation to the land has been made which is treated as neither a supply of goods nor a supply of services because —
a
the supply is a supply of the assets of a business by the taxpayer to a person to whom the business (or part of it) is transferred as a going concern, or
b
the supply is a supply of assets of a business by a person to the taxpayer to whom the business (or part of it) is so transferred.
3
The notification of the revocation must —
a
be made in a form specified in a public notice, and
b
contain information so specified.
4
The Commissioners may publish a notice for the purposes of this paragraph providing that a revocation under this paragraph is effective only if —
a
the conditions specified in the notice are met in relation to the option, or
b
the taxpayer gets the prior permission of the Commissioners on an application made to them before the end of the 6 month period mentioned above.
5
A notice under sub-paragraph (4) may —
a
provide that, in a case falling with paragraph (a) of that sub-paragraph, the taxpayer must certify that the conditions specified under that paragraph are met in relation to the option,
b
specify the form in which an application under paragraph (b) of that sub-paragraph must be made,
c
provide that an application under that paragraph must contain a statement by the taxpayer certifying which (if any) of the conditions specified under sub-paragraph (4)(a) are met in relation to the option,
d
specify other information which an application under sub-paragraph (4)(a) must contain, and
e
provide that the Commissioners may specify conditions subject to which their permission is given and, if any of those conditions are broken, the Commissioners may treat the revocation as if it had not been made.
Revocation of option: lapse of 6 years since having a relevant interest
24
1
An option to tax exercised by any person in relation to any building or land is treated for the purposes of this Part of this Schedule as revoked if the person does not have a relevant interest in the building or land throughout any continuous period of 6 years beginning at any time after the option has effect.
2
The option to tax is treated for the purposes of this Part of this Schedule as revoked from the end of that period.
3
In this paragraph “a relevant interest in the building or land” means an interest in, right over or licence to occupy the building or land (or any part of it).
4
This paragraph is subject to paragraph 26 (anti-avoidance).
Revocation of option: lapse of more than 20 years since option had effect
25
1
An option to tax any land exercised by any person (“the taxpayer”) may be revoked if the time that has lapsed since the day on which the option had effect is more than 20 years and —
a
at the time when the option is to be revoked the conditions specified in a public notice are met in relation to the option (in which case, see sub-paragraphs (2) to (4)), or
b
the taxpayer gets the prior permission of the Commissioners (in which case, see the remaining sub-paragraphs).
2
If the conditions specified in the public notice are met in relation to the option, the revocation has effect only if notification of the revocation is given to the Commissioners.
3
The notification must —
a
be made in the specified form,
b
state the day from which the option is to be revoked (which may not be before the day on which the notification is given),
c
contain a statement by the taxpayer certifying that, on that day, the conditions specified in the public notice are met in relation to the option, and
d
contain other information specified in a public notice.
4
If —
a
notification of the revocation of an option is given to the Commissioners on the basis that the conditions specified in the public notice were met in relation to the option, but
b
it is subsequently discovered that those conditions were not met in relation to the option,
the Commissioners may nonetheless treat the option as if it had been validly revoked in accordance with this paragraph.
5
An application for the prior permission of the Commissioners must —
a
be made in a form specified in a public notice,
b
contain a statement by the taxpayer certifying which (if any) of the conditions specified in the public notice under sub-paragraph (1)(a) are met in relation to the option, and
c
contain other information specified in a public notice.
6
If the taxpayer gets the prior permission of the Commissioners for the revocation of an option, the option is revoked from —
a
the day on which the Commissioners give their permission, or
b
such earlier or later day as they specify in their permission.
7
The Commissioners may specify an earlier day only if —
a
the taxpayer has purported to give a notification of the revocation of the option,
b
the conditions specified in the public notice are not, in the event, met in relation to the option, and
c
the Commissioners consider that the grounds on which those conditions are not so met are insignificant.
8
The day specified may be the day from which the option would have been revoked if those conditions had been so met.
9
The Commissioners may specify conditions subject to which their permission is given and, if any of those conditions are broken, they may treat the revocation as if it had not been made.
Revocation of option under paragraph 22(2) or (3) or 24: anti-avoidance
26
1
Paragraphs 22(2) and (3) and 24 (which in particular circumstances treat an option to tax exercised in relation to any building or land as revoked) do not apply if —
a
the person exercising the option mentioned in paragraph 22(2) or (3) or 24 (“the opter”) is a body corporate,
b
the opter has been treated under sections 43A to 43D as a member of a group at any time in the relevant 6 year period, and
c
any relevant associate of the opter in relation to the building or land ceases to be treated under those sections as a member of the same group as the opter without at the same time ceasing to be a relevant associate of the opter in relation to the building or land in accordance with paragraph 3(4).
2
In sub-paragraph (1)(c) the reference to a relevant associate of the opter in relation to any building or land includes a body corporate which has been a relevant associate of the opter in relation to the building or land at any time before the start of the relevant 6 year period.
3
In this paragraph “the relevant 6 year period”, in relation to any option to tax, means the period of 6 years ending with the time from which the option would (but for this paragraph) have been treated as revoked as a result of paragraph 22(2) or (3) or 24.
Exclusion of new building from effect of an option
27
1
This paragraph applies if —
a
a person (“the taxpayer”) has at any time opted to tax any land,
b
at any subsequent time the construction of a building (“the new building”) on the land begins, and
c
no land within the curtilage of the new building is within the curtilage of an existing building.
2
The taxpayer may exclude —
a
the whole of the new building, and
b
all the land within its curtilage,
from the effect of the option if notification of that exclusion is given to the Commissioners.
3
The exclusion has effect from the earliest of the following times —
a
the time when a grant of an interest in, or in any part of, the new building is first made,
b
the time when the new building, or any part of it, is first used,
c
the time when the new building is completed.
4
The notification of the exclusion must —
a
be made in a form specified in a public notice,
b
be given before the time from which it is to have effect and state that time, and
c
contain other information so specified.
5
Sub-paragraphs (4) to (6) of paragraph 18 (meaning of “building”) apply for the purposes of this paragraph as they apply for the purposes of that paragraph.
6
For the purposes of this paragraph the reference to the construction of a building is to be read without regard to Note (17) or (18)(b) of Group 5 of Schedule 8 (which would otherwise apply as a result of paragraph 33 of this Schedule).
7
The Commissioners may publish a notice for determining the time at which the construction of a building on any land is to be taken to begin for the purposes of this paragraph.
Pre-option exempt grants: requirement for prior permission before exercise of option to tax
28
1
This paragraph applies if —
a
a person wants to exercise an option to tax any land with effect from a particular day,
b
at any time (“the relevant time”) before that day the person has made, makes or intends to make an exempt supply to which any grant in relation to the land gives rise, and
c
the relevant time is within the period of 10 years ending with that day.
2
The person may exercise the option to tax the land only if —
a
the conditions specified in a public notice are met in relation to the land, or
b
the person gets the prior permission of the Commissioners (but see also paragraph 30).
3
The Commissioners must refuse their permission if they are not satisfied that there would be a fair and reasonable attribution of relevant input tax to relevant supplies.
4
For this purpose —
“relevant input tax” means input tax incurred, or likely to be incurred, in relation to the land, and
“relevant supplies” means supplies to which any grant in relation to the land gives rise which would be taxable (if the option has effect).
5
In deciding whether there would be a fair and reasonable attribution of relevant input tax to relevant supplies, the Commissioners must have regard to all the circumstances of the case.
6
But they must have regard in particular to —
a
the total value of any exempt supply to which any grant in relation to the land gives rise and which is made or to be made before the day from which the person wants the option to have effect,
b
the expected total value of any supply to which any grant in relation to the land gives rise that would be taxable (if the option has effect), and
c
the total amount of input tax incurred, or likely to be incurred, in relation to the land.
Paragraph 28: application for prior permission
29
1
An application for the prior permission of the Commissioners under paragraph 28 must —
a
be made in a form specified in a public notice,
b
contain a statement by the applicant certifying which (if any) of the conditions specified in the public notice under paragraph 28(2)(a) are met in relation to the land, and
c
contain other information specified in a public notice.
2
The Commissioners may specify conditions subject to which their permission is given and, if any of those conditions are broken, they may treat the application as if it had not been made.
3
If the applicant (A) gets the prior permission of the Commissioners, A is, as a result of this sub-paragraph, treated for the purposes of this Part of this Schedule as if A had exercised the option to tax the land with effect from —
a
the start of the day on which the application was made, or
b
the start of any later day specified in the application.
Paragraph 28: purported exercise where prior permission not obtained
30
1
This paragraph applies if —
a
an option to tax was purportedly exercised in a case where, before the option could be exercised, the prior permission of the Commissioners was required under paragraph 28, and
b
notification of the purported option was purportedly given to the Commissioners in accordance with paragraph 20.
2
The Commissioners may, in the case of any such option, subsequently dispense with the requirement for their prior permission to be given under paragraph 28.
3
If the Commissioners dispense with that requirement, a purported option —
a
is treated for the purposes of this Part of this Schedule as if it had instead been validly exercised, and
b
has effect in accordance with paragraph 19.
Supplementary provisions
Timing of grant and supplies
31
1
This paragraph applies if —
a
an option to tax is exercised in relation to any land,
b
a grant in relation to the land would otherwise be taken to have been made (whether in whole or in part) before the time when the option has effect, and
c
the grant gives rise to supplies which are treated for the purposes of this Act as taking place after that time.
2
For the purposes of this Part of this Schedule, the option to tax has effect, in relation to those supplies, as if the grant had been made after that time.
Supplies in relation to a building where part designed or intended for residential or charitable use and part designed or intended for other uses
32
Note (10) of Group 5 of Schedule 8 applies for the purposes of this Part of this Schedule.
Definitions in Schedules 8 or 9 that are applied for the purposes of this Schedule
33
In this Part of this Schedule, references to the expressions listed in the first column are to be read in accordance with the provisions listed in the second column —
Expression Provision
building designed or adapted for use as a dwelling or a number of dwellings Note (2) to Group 5 of Schedule 8 completion of a building Note (2) to Group 1 of Schedule 9 construction of a building Notes (16) to (18) to Group 5 of Schedule 8 (but see paragraph 27(6) of this Schedule) construction of a building intended for use as a dwelling or a number of dwellings Note (3) to Group 5 of Schedule 8 grant Note (1) to Group 5 of Schedule 8/ Notes (1) and (1A) to Group 1 of Schedule 9 use for a relevant charitable purpose Notes (6) and (12) to Group 5 of Schedule 8 use for a relevant residential purpose Notes (4), (5) and (12) to Group 5 of Schedule 8 (but see paragraphs 6(9) and 10(4) of this Schedule)
Other definitions etc
34
1
In this Part of this Schedule —
“notification” means written notification, and
“permission” means written permission.
2
For the purposes of this Part of this Schedule any question whether a person is connected with another person is to be decided in accordance with section 839 of the Taxes Act .
3
Any reference in any provision of this Part of this Schedule to a public notice is to a notice published by the Commissioners for the purposes of that provision.
PART 2 RESIDENTIAL AND CHARITABLE BUILDINGS: CHANGE OF USE ETC
Meaning of “relevant zero-rated supply”
35
For the purposes of this Part of this Schedule a “relevant zero-rated supply” means a grant or other supply which —
a
relates to a building (or part of a building) intended for use solely for a relevant residential purpose, or
b
relates to a building (or part of a building) intended for use solely for a relevant charitable purpose,
and which, as a result of Group 5 of Schedule 8, is zero-rated (in whole or in part).
Person to whom supply made grants interest etc in building and building not intended solely for relevant residential or charitable purpose
36
1
This paragraph applies if —
a
one or more relevant zero-rated supplies relating to a building (or part of a building) have been made to a person, and
b
conditions A and B are met.
2
Condition A is that, within the period of 10 years beginning with the day on which the building is completed, the person grants an interest in, right over or licence to occupy —
a
the building or any part of it, or
b
the building or any part of it including, consisting of or forming part of the part to which the relevant zero-rated supply or supplies related.
3
Condition B is that after the grant —
a
the whole or any part of the building or of the part to which the grant relates, or
b
the whole of the building or of the part to which the grant relates, or any part of it including, consisting of or forming part of the part to which the relevant zero-rated supply or supplies related,
is not intended for use solely for a relevant residential purpose or a relevant charitable purpose.
4
So far as the grant relates to so much of the building as —
a
by reason of its intended use gave rise to the relevant zero-rated supply or supplies, and
b
is not intended for use solely for a relevant residential purpose or a relevant charitable purpose after the grant,
it is taken to be a taxable supply in the course or furtherance of a business which is not zero-rated as a result of Group 5 of Schedule 8.
Person to whom supply made uses building otherwise than for relevant residential or charitable purpose
37
1
This paragraph applies if one or more relevant zero-rated supplies relating to a building (or part of a building) have been made to a person and, within the period of 10 years beginning with the day on which the building is completed, the person uses —
a
the building or any part of it, or
b
the building or any part of it including, consisting of or forming part of the part to which the relevant zero-rated supply or supplies related,
for a purpose which is neither a relevant residential purpose nor a relevant charitable purpose.
2
The person’s interest in, right over or licence to occupy so much of the building as —
a
by reason of its intended use gave rise to the relevant zero-rated supply or supplies, and
b
is used otherwise than for a relevant residential purpose or a relevant charitable purpose,
is treated as follows.
3
The interest, right or licence is treated for the purposes of this Act as —
a
supplied to the person for the purposes of a business which the person carries on, and
b
supplied by the person in the course or furtherance of the business when the person first uses it for a purpose which is neither a relevant residential purpose nor a relevant charitable purpose.
4
The supply is taken to be a taxable supply which is not zero-rated as a result of Group 5 of Schedule 8.
5
The value of the supply is taken to be the amount obtained by the formula —
A × (
10 − B
10
)
6
For the purposes of the formula, A is the amount that yields an amount of VAT chargeable on it equal to —
a
the VAT which would have been chargeable on the relevant zero-rated supply, or
b
if there was more than one supply, the aggregate amount of the VAT which would have been chargeable on the supplies,
had so much of the building not been intended for use solely for a relevant residential purpose or a relevant charitable purpose.
7
For the purposes of the formula, B is the number of whole years since the day the building was completed for which the building or part concerned has been used for —
a
a relevant residential purpose, or
b
a relevant charitable purpose.
Supplies in relation to a building where part designed for residential or charitable use and part designed for other uses
38
Note (10) of Group 5 of Schedule 8 applies for the purposes of this Part of this Schedule.
Definitions
39
In this Part of this Schedule, references to the expressions listed in the first column are to be read in accordance with the provisions listed in the second column —
Expression Provision
completion of a building Note (2) to Group 1 of Schedule 9 grant Note (1) to Group 5 of Schedule 8 / Notes (1) and (1A) to Group 1 of Schedule 9 use for a relevant charitable purpose Notes (6) and (12) to Group 5 of Schedule 8 use for a relevant residential purpose Notes (4), (5) and (12) to Group 5 of Schedule 8
PART 3 GENERAL
Benefit of consideration for grant accruing to a person other than the grantor
40
1
This paragraph applies if the benefit of the consideration for the grant of an interest in, right over or licence to occupy land accrues to a person (“the beneficiary”) other than the person making the grant.
2
The beneficiary is to be treated for the purposes of this Act as the person making the grant.
3
So far as any input tax of the person actually making the grant is attributable to the grant, it is to be treated for the purposes of this Act as input tax of the beneficiary.
.
Appeals
3
1
VATA 1994 is amended as follows.
2
In section 83 (appeals), after paragraph (wa) insert —
wb
any refusal of the Commissioners to grant any permission under, or otherwise to exercise in favour of a particular person any power conferred by, any provision of Part 1 of Schedule 10;
.
3
In section 84 (further provisions relating to appeals), after subsection (7A) insert —
7ZA
Where there is an appeal against such a refusal as is mentioned in section 83(wb) —
a
the tribunal shall not allow the appeal unless it considers that the Commissioners could not reasonably have been satisfied that there were grounds for the refusal, and
b
the refusal shall have effect pending the determination of the appeal.
.
Developmental tenancies, leases or licences
4
1
Paragraph (b) of item 1 in Group 1 of Schedule 9 to VATA 1994 (exempt supplies of land not to include supplies made pursuant to a developmental tenancy, developmental lease or developmental licence) is repealed.
2
Note (7) in that Group (meaning of developmental tenancy, developmental lease or developmental licence) is repealed.
Co-owners etc of buildings and land
5
1
Section 26 of FA 1995 (co-owners etc of buildings and land) is repealed.
2
Accordingly —
a
section 51A of VATA 1994 is repealed, and
b
paragraph 8(2) and (3) of Schedule 10 to that Act are repealed without being rewritten in that Schedule as substituted by article 2.
Consequential amendments, repeals and revocations
6
Schedule 1 contains consequential amendments, repeals and revocations.
Transitional provisions and savings
7
Schedule 2 contains transitional provisions and savings.
Frank Roy
Alan Campbell
Two of the Lords Commissioners of Her Majesty’s Treasury
21st April 2008


type: legislation

jurisdiction: UK

text:
PART 1
General
Citation, commencement and interpretation
1
1
This Order may be cited as the Scottish Parliament (Elections etc.) (Amendment) Order 2008 and subject to paragraphs (2) and (3) shall come into force on 8th February 2008.
2
The articles specified in paragraph (3) shall not have effect in relation to any election for which the date of the poll specified in the notice of election issued in relation to that election is on or before 7th August 2008.
3
The articles referred to in paragraph (2) are–
a
article 2(2); and
b
articles 13 to 18.
4
In this Order, unless otherwise stated, any reference to a numbered article, rule, paragraph, Schedule or Appendix is a reference to the article, rule, paragraph, Schedule or Appendix bearing that number in the Scottish Parliament (Elections etc.) Order 2007 .
PART 2
Absent voting: personal identifiers
Absent voting: interpretation
2
1
In article 3(1) (interpretation) after the definition of “the 2006 Act” insert–
“absent voter” means an elector who is entitled to vote by proxy or an elector or proxy who is entitled to vote by post;
.
2
In paragraph 1 of Schedule 4 remove the “and” preceding the definition of “spoilt ballot paper” and after that definition insert–
and “valid postal voting statement” means a postal voting statement which, in accordance with paragraph 20 or 20A , the constituency returning officer is satisfied has been duly completed.
.
Amendment of article 9
3
1
Article 9 (absent vote at Scottish parliamentary elections for an indefinite or a particular period) is amended as follows.
2
In paragraph (1)(b), after “application” insert “contains the applicant’s signature and date of birth and”.
3
In paragraph (2)(c), after “application” insert “contains the applicant’s signature and date of birth and”.
4
After paragraph (6) insert–
7
The registration officer may dispense with the requirement under paragraph (1)(b) or (2)(c) for the applicant to provide a signature if he is satisfied that the applicant is unable–
a
to provide a signature because of any disability the applicant has,
b
to provide a signature because the applicant is unable to read or write, or
c
to sign in a consistent and distinctive way because of any such disability or inability.
8
The registration officer must also keep a record in relation to those whose applications under this regulation have been granted showing–
a
their dates of birth, and
b
except in cases where the registration officer in pursuance of paragraph (7) has dispensed with the requirement to provide a signature, their signatures.
9
The record kept under paragraph (8) must be retained by the registration officer for the period prescribed in paragraph 12A of Schedule 3 .
.
Amendment of article 10
4
1
Article 10 (absent vote at a particular Scottish parliamentary election) is amended as follows.
2
In paragraph (1)(b), after “application” insert “contains the applicant’s signature and date of birth and”.
3
In paragraph (2)(c), after “application” insert “contains the applicant’s signature and date of birth and”.
4
After paragraph (6) insert–
7
The registration officer may dispense with the requirement under paragraph (1)(b) or (2)(c) for the applicant to provide a signature if he is satisfied that the applicant is unable–
a
to provide a signature because of any disability the applicant has,
b
to provide a signature because the applicant is unable to read or write, or
c
to sign in a consistent and distinctive way because of any such disability or inability.
8
The registration officer must also keep a record in relation to those whose applications under this regulation have been granted showing–
a
their dates of birth, and
b
except in cases where the registration officer in pursuance of paragraph (7) has dispensed with the requirement to provide a signature, their signatures.
9
The record kept under paragraph (8) must be retained by the registration officer for the period prescribed in paragraph 12A of Schedule 3.
.
Amendment of article 11
5
1
Article 11 (proxies at Scottish parliamentary elections) is amended as follows.
2
In paragraph (6) after “application” where it second occurs insert “is signed by the applicant and”.
3
In paragraph (7) after “application” where it first occurs insert “is signed by the applicant and”.
Amendment of article 12
6
1
Article 12 (application for proxy postal vote) is amended as follows.
2
In paragraph (4), after “application” where it last occurs insert “contains the applicant’s signature and date of birth and”.
3
After paragraph (10) insert–
11
The registration officer may dispense with the requirement under paragraph (4) for the applicant to provide a signature if he is satisfied that the applicant is unable–
a
to provide a signature because of any disability the applicant has,
b
to provide a signature because the applicant is unable to read or write, or
c
to sign in a consistent and distinctive way because of any such disability or inability.
12
The registration officer must also keep a record in relation to those whose applications under paragraph (4) have been granted showing–
a
their dates of birth, and
b
except in cases where the registration officer in pursuance of paragraph (11) has dispensed with the requirement to provide a signature, their signatures.
13
The record kept under paragraph (12) must be retained by the registration officer for the period prescribed in paragraph 12A of Schedule 3.
.
Amendment to offence provision
7
In article 28(2)(b) (false statements in connection with postal and proxy vote applications) after “vote” insert “or providing false information in connection with such an application”.
Amendment to rule 55
8
1
In rule 55(2) of Schedule 2 (circumstances in which a postal ballot paper is duly returned) after “duly signed” insert “and which also states the date of birth of the elector or proxy (as the case may be)”.
2
After rule 55(2) insert–
2A
In a case where steps for verifying the date of birth and signature of an elector or proxy have been taken in accordance with paragraph 20A or 20B of Schedule 4 , the postal ballot paper shall not be deemed to be duly returned unless the constituency returning officer verifies the date of birth and signature of the elector or proxy (as the case may be).
.
Amendment of paragraph 1 of Schedule 3
9
1
Paragraph 1 of Schedule 3 (general requirements for applications for an absent vote) is amended as follows.
2
In sub-paragraph (1) omit the “and” preceding paragraph (e) and after paragraph (e) insert–
f
in the case of a person who is unable to provide a signature, the reasons for his request for waiver of any requirement under article 9, 10, 11 or 12 to provide a signature and the name and address of any person who has assisted him to complete his application, and
g
where the applicant has, or has applied for, an anonymous entry, that fact,
.
3
In sub-paragraph (1) for “signed by the applicant ” substitute “dated”.
4
After sub-paragraph (1) insert–
1A
Where an application is required to contain a signature and date of birth, the information must be set out in a manner that is sufficiently clear and unambiguous as to be capable of electronic scanning by configuring the information as follows–
a
the signature shall appear against a background of white unlined paper at least five centimetres long and two centimetres high; and
b
the applicant’s date of birth shall be set out numerically configured in the sequence of date, month and year, namely [d][d][m][m][y][y][y][y].
1B
Where the application contains a request that the registration officer waive the requirement for a signature, sub-paragraph (1A)(a) shall not apply.
.
Checking of signatures and provision of fresh signatures
10
After paragraph 1 of Schedule 3 insert–
Checking of signatures
1A
The registration officer may satisfy himself–
a
that an application under article 9, 10, 11 or 12 meets any requirements that it has been signed by the applicant and states his date of birth by referring to any signature and date of birth–
i
previously provided by the applicant to the registration officer or a returning officer; or
ii
previously provided by the applicant to the council by which the registration officer was appointed, if held by that council in records which the registration officer is authorised to inspect for the purposes of his registration duties; and
b
as to whether the applicant is unable to provide a signature or a consistent signature due to any disability or inability to read or write.
Provision of fresh signatures
1B
1
A person who remains on the record kept under article 9(4) or article 12(5) may, at any time, provide the registration officer with a fresh signature.
2
Anything required or authorised to be done for the purposes of this order in relation to a signature required to be provided in pursuance of this order must be done in relation to a signature provided as mentioned in sub-paragraph (1) instead of in relation to a signature provided on any earlier occasion.
.
Requirement to provide fresh signatures at five yearly intervals
11
After paragraph 11 of Schedule 3 (inquiries by registration officer) insert–
Requirement to provide fresh signatures at five yearly intervals
11A
1
The registration officer shall every year by 31st January send every person who remains an absent voter and whose signature held on the personal identifiers record is more than five years old a notice in writing–
a
requiring him to provide a fresh signature, and
b
informing him of the date (six weeks from the date of sending the notice) on which he would cease to be entitled to vote by post or by proxy in the event of a failure or refusal to provide a fresh signature.
2
The notice must be sent by the registration officer to the current or last known address of the absent voter.
3
The registration officer must, if the absent voter has not responded to the notice within three weeks from the date on which the notice was sent, as soon as practicable send a copy of the notice to him.
4
Where a notice or copy of a notice is sent by post, the registration officer may use–
a
a universal postal service provider; or
b
a commercial delivery firm,
and postage shall be prepaid.
5
A notice or copy of a notice sent to an absent voter in accordance with sub paragraph (1) or (3) must be accompanied by a pre-addressed reply envelope and, in the case of any notice or copy of a notice sent to an address in the United Kingdom, return postage must be prepaid.
6
The registration officer must, no later than the date specified in the notice sent to the absent voter in accordance with sub-paragraph (1), determine whether the absent voter has failed or refused to provide a fresh signature.
7
Where the registration officer determines that the absent voter has failed or refused to provide a fresh signature he must from the date specified in the notice sent to the absent voter in accordance with sub paragraph (1) remove that person’s entry from the records kept pursuant to paragraph 3(4) or 7(6) of Schedule 4 and from the postal voters list, list of proxies or proxy postal voters list (as the case may be) kept under paragraph 5(2), 5(3) or 7(8) of that Schedule.
8
Where a registration officer removes an absent voter’s entry in the circumstances to which sub-paragraph (7) refers–
a
the registration officer shall inform the absent voter of the location of the polling station to which he has been allotted or is likely to be allotted under rule 35 of Schedule 2, unless that voter is not likely to be allotted to a polling station;
b
paragraph 8(4) and 9 shall apply as if the registration officer were refusing an application under article 9, 10, 11 or 12; and
c
in the case of an entry removed from the special list kept under article 12(7), the registration officer must also notify the elector who appointed the proxy whose entry has been removed.
9
The registration officer shall include in the notice to be sent to an absent voter regarding his removal from the records kept pursuant to article 9(4) or 12(5) and (as the case may be) from the special list kept under article 10(5)(a), the list of proxies kept under article 10(5)(b) or the special list kept under article 12(7), information–
a
explaining the effect of such removal; and
b
reminding the absent voter that he may make a fresh application under article 9, 10, 11 or 12 to vote by post or by proxy (as the case may be).
.
Recording and use of personal identifier information
12
After paragraph 12 of Schedule 3 (records and lists kept under articles 9, 10 and 12) insert–
The personal identifiers record
12A
1
The registration officer shall maintain a record (“the personal identifiers record”), apart from the other records and lists which he is required to keep under articles 9, 10 and 12, of the signatures and dates of birth provided by persons whose applications under article 9(1) or (2), article 10(1) or (2), or article 12(4) were granted, until the expiry of twelve months from–
a
the date on which a person is removed from the record kept pursuant to article 9(4) or article 12(5); or
b
the date of the poll for the purposes of which the person’s application for an absent vote was granted under article 10(1) or (2) or article 12(4).
2
The personal identifiers record shall contain the following information in respect of each absent voter on the special list kept under article 10(5)(a), the list of proxies kept under article 10(5)(b) or the special list kept under article 12(7)–
a
his name;
b
his date of birth; and
c
his signature, or a record of the waiver by the registration officer of the requirement for a signature.
3
The constituency returning officer may disclose information held in the personal identifiers record to–
a
any candidate or agent attending proceedings on receipt of postal ballot papers, in accordance with and for the purposes referred to in paragraph 20 of Schedule 4 ;
b
any person attending proceedings on receipt of postal ballot papers, who is entitled to do so by virtue of any of sections 6A to 6D of the Political Parties, Elections and Referendums Act 2000 , but only to the extent required to permit them to observe the proceedings.
Use of personal identifier information
12B
1
The registration officer must either–
a
provide the constituency returning officer for an election with a copy of the information contained in records kept by the registration officer in pursuance of articles 9(8), 10(8) and 12(12) in relation to electors at the election, or
b
give the constituency returning officer access to such information.
2
Information contained in records kept by a registration officer in pursuance of articles 9(8), 10(8) and 12(12) may be disclosed by him to–
a
any other registration officer if he thinks that to do so will assist the other registration officer in the performance of his duties, or
b
any other person exercising functions in relation to the preparation or conduct of legal proceedings under this Order.
.
Postal ballot boxes and receptacles
13
In paragraph 16(5) of Schedule 4 omit the “and” preceding paragraph (d) and after paragraph (d) insert–
e
the receptacle for rejected votes (verification procedure); and
f
the receptacle for postal voting statements (verification procedure).
.
Amendment of paragraph 19 of Schedule 4
14
1
Paragraph 19 of Schedule 4 (opening of covering envelopes) is amended as follows.
2
For sub-paragraph (1) substitute–
1
When a postal voters' ballot box is opened, the constituency returning officer shall count and record the number of covering envelopes (including any envelope which is stated to include a postal vote and any envelope described in paragraph 17(2)).
1A
He shall set aside for personal identifier verification not less than 20 per cent of the envelopes recorded on that occasion.
1B
He shall open separately each covering envelope (including an envelope described in paragraph 17(2)).
.
3
In sub-paragraph (2) for “The procedure in paragraph 20 applies” substitute “The procedure in paragraph 20 or, as the case may be, paragraph 20A applies”.
4
After sub-paragraph (4) insert–
4A
Where–
a
an envelope contains the postal voting statement of an elector with an anonymous entry, and
b
sub-paragraph (4) does not apply,
the constituency returning officer shall set aside that envelope and its contents for personal identifier verification in accordance with paragraph 20A.
.
5
In sub-paragraph (6) for “sub-paragraph (1)” substitute “sub-paragraph (1B)”.
Amendment of paragraph 20 of Schedule 4
15
In paragraph 20 of Schedule 4 (procedure in relation to postal voting statements), for sub paragraph (1) substitute–
1
This paragraph applies to any postal voting statement contained in an envelope that has not been set aside for personal identifier verification in accordance with paragraph 19(1A) or (4A) .
1A
The constituency returning officer must satisfy himself that the postal voting statement is duly completed.
.
Procedure in relation to postal voting statements: personal identifier verification
16
After paragraph 20 of Schedule 4 insert–
Procedure in relation to postal voting statements: personal identifier verification
20A
1
This paragraph applies to any postal voting statement contained in an envelope that is set aside for personal identifier verification in accordance with paragraph 19(1A) or (4A) .
2
The constituency returning officer must satisfy himself that the postal voting statement is duly completed and as part of that process must compare the date of birth and the signature on the postal voting statement against the date of birth and the signature contained in the personal identifier record relating to the person to whom the postal ballot paper was addressed.
3
Where the constituency returning officer is not so satisfied, he shall mark the statement “rejected”, attach it to the ballot paper envelope, or if there is no such envelope, the ballot paper, and, subject to sub-paragraph (4), place it in the receptacle for rejected votes (verification procedure).
4
Before placing a postal voting statement in the receptacle for rejected votes (verification procedure), the constituency returning officer must show it to the agents and must permit them to view the entries in the personal identifiers record which relate to the person to whom the postal ballot paper was addressed, and if any of them object to his decision, he must add the words “rejection objected to”.
5
The constituency returning officer shall then examine the number on the postal voting statement against the number on the ballot paper envelope and, where they are the same, he shall place the statement and the ballot paper envelope respectively in the receptacle for postal voting statements (verification procedure) and the receptacle for ballot paper envelopes.
6
Where–
a
the number on a valid postal voting statement is not the same as the number on the ballot paper envelope, or
b
that envelope has no number on it (or only one number when the postal voting statement has more than one),
the constituency returning officer shall open the envelope.
7
Sub-paragraph (8) applies where–
a
there is a valid postal voting statement but no ballot paper envelope; or
b
the ballot paper envelope has been opened under paragraph 19(3) or sub paragraph (6).
8
In the circumstances described in sub-paragraph (7), the constituency returning officer shall place–
a
in the postal ballot box, any ballot paper the number on which is the same as the number on the valid postal voting statement;
b
in the receptacle for rejected votes (verification procedure), any other ballot paper, with the valid postal voting statement attached and marked “provisionally rejected”;
c
in the receptacle for rejected votes (verification procedure), any valid postal voting statement marked “provisionally rejected” where–
i
there is no ballot paper, or
ii
in the case of a statement on which the number of more than one ballot paper appears, there is not a sufficient number of ballot papers and, in such a case, shall mark the statement to indicate which ballot paper is missing;
d
in the receptacle for postal voting statements (verification procedure), any valid statement not disposed of under paragraph (b) or (c).
Postal voting statements: additional personal identifier verification
20B
1
A constituency returning officer may on any occasion at which a postal voters' ballot box is opened in accordance with paragraph 18 undertake additional verification of the personal identifiers on any postal voting statement that has on a prior occasion been placed in the receptacle for postal voting statements.
2
Where a constituency returning officer undertakes additional verification of personal identifiers, he must–
a
remove as many postal voting statements from the receptacle for postal voting statements as he wishes to subject to additional verification; and
b
compare the date of birth and the signature on each such postal voting statement against the date of birth and the signature contained in the personal identifiers record relating to the person to whom the postal ballot paper was addressed.
3
Where the constituency returning officer is no longer satisfied that the postal voting statement has been duly completed he must mark the statement “rejected” and before placing the postal voting statement in the receptacle for rejected votes (verification procedure), he must–
a
show it to the agents and must permit them to view the entries in the personal identifiers record which relate to the person to whom the postal ballot paper was addressed, and if any of them object to his decision, he must add the words “rejection objected to”;
b
open any postal ballot box and retrieve the ballot paper corresponding to the ballot paper number on the postal voting statement;
c
show the ballot paper number on the retrieved ballot paper to the agents; and
d
attach the ballot paper to the postal voting statement.
4
Following the removal of a postal ballot paper from a postal ballot box the constituency returning officer must lock and reseal the postal ballot box in the presence of the agents.
5
Whilst retrieving a ballot paper in accordance with sub-paragraph (3), the constituency returning officer and his staff–
a
shall keep the ballot papers face downwards and shall take proper precautions for preventing any person seeing the votes made on the ballot papers; and
b
shall not be permitted to view the corresponding number list used at the issue of postal ballot papers.
.
Sealing of receptacles
17
In paragraph 26(1) of Schedule 4 omit the “and” preceding paragraph (d) and after paragraph (d) insert–
e
the receptacle for rejected votes (verification procedure), and
f
the receptacle for postal voting statements (verification procedure),
.
Amendment of forms
18
In the Appendix of Forms for Form L, Form M1, Form N1, Form U, Form V, Form W and Form Y substitute the Form L, Form M1, Form N1, Form U, Form V, Form W and Form Y as set out in the Schedule to this Order.
PART 3
Personal identifiers: transitional provisions
Interpretation of Part 3
19
In this Part–
“absent voter” means a person whose application under article 9(1) or (2), article 10(1) or (2), or article 12(4) has been granted prior to 8th February 2008;
“absent voting records” means any one or more of the records kept pursuant to article 9(4) or 12(5) or the lists kept pursuant to article 10(5)(a), (b) or 12(7).
Existing applications
20
Where a person has made an application under article 9(1) or (2), article 10(1) or (2), or article 12(4) prior to 8th February 2008 that has not been determined on or before 7th February 2008, the registration officer must not grant the application unless the applicant has provided to the registration officer a specimen of their signature and their date of birth.
Requiring personal identifiers from existing absent voters
21
1
A registration officer must by 7th April 2008 send a notice in writing to every person whose entry on the absent voting records was made in consequence of an application that did not include a specimen of their signature and their date of birth.
2
The notice must require the absent voter to provide to the registration officer, within six weeks from the date of sending the notice, a specimen of the absent voter’s signature and the absent voter’s date of birth (“the required personal identifiers”) in accordance with the Part.
3
The notice must be sent by the registration officer to the current or last known address of the absent voter.
4
The registration officer must, if the absent voter has not responded to the notice within three weeks from the date on which the notice was sent, as soon as practicable send a copy of the notice to the absent voter.
5
Where a notice or copy of a notice is sent by post, the registration officer may use–
a
a universal postal service provider; or
b
a commercial delivery firm,
and postage shall be prepaid.
6
A notice or copy of a notice sent to an absent voter in accordance with this Part must be accompanied by a pre-addressed reply envelope and, in the case of any notice sent to an address within the United Kingdom, return postage shall be prepaid.
7
Where a registration officer has been provided with the required personal identifiers by an applicant for an absent vote under the Representation of the People (Scotland) Regulations 2001 or the Absent Voting (Transitional Provisions) (Scotland) Regulations 2008 before the date specified in accordance with article 22(2)(d) of this Order in the notice sent to the absent voter, he or she may use them for the purposes of Scottish Parliamentary elections and records kept in connection with such elections.
Required information to be provided to existing absent voters
22
1
Where a registration officer sends a notice or a copy of a notice pursuant to article 21 of this Order, the registration officer must also provide information–
a
explaining how the required personal identifiers will be used and how the required personal identifiers will assist in deterring misuse of the entitlement to vote;
b
explaining that, in the event of a failure or refusal to provide the required personal identifiers, the absent voter will lose his or her entitlement to vote by post, by proxy or by post as a proxy (as the case may be);
c
explaining the circumstances in which a registration officer may dispense with the requirement to provide a signature; and
d
explaining that loss of the entitlement to vote by post, by proxy or by post as a proxy (as the case may be) under this Part does not prevent the absent voter from making a fresh application under article 9, 10 or 12 to be entitled to vote by post, by proxy or by post as a proxy.
2
The notice must specify the following matters–
a
the types of elections in respect of which the absent voter would cease to be entitled to vote by post, by proxy or by post as a proxy (as the case may be) if he or she does not provide the required personal identifiers;
b
whether the person has an entry in the absent voting records as voting by post, by proxy or by post as a proxy or in more than one capacity;
c
as regards an absent elector entitled to vote by post as a proxy, the name and address of each person for whom he or she is entitled to vote; and
d
the date (not less than 49 days from the sending of the initial notice) from which he or she will cease to be entitled to vote by post, by proxy or by post as a proxy (as the case may be) in the event of a failure or refusal to provide the required personal identifiers.
Determination by registration officer
23
1
The registration officer must, no later than the date specified in accordance with article 22(2)(d) of this Order in the notice sent to the absent voter determine whether the absent voter has failed or refused to provide the required personal identifiers.
2
The registration officer shall not determine that an absent voter has failed or refused to provide the required personal identifiers due to a failure to provide a signature if the registration officer is satisfied that the absent voter is unable–
a
to provide a signature because of any disability the absent voter has;
b
to provide a signature because the absent voter is unable to read or write; or
c
to sign in a consistent and distinctive way because of any such disability or inability,
and where the registration officer is so satisfied entries of the absent voter in the absent voting records shall not show the absent voter’s signature.
Consequence of failure or refusal to provide personal identifiers
24
1
Where the registration officer determines that an absent voter has failed or refused to provide the required personal identifiers–
a
if the absent voter has an entry in the registration officer’s absent voting records, he or she must remove that entry, and the absent voter shall not be entitled to vote by post, by proxy or by post as a proxy (as the case may be) otherwise than in pursuance of a further application made under article 9, 10 or 12;
b
in the case of an absent voter whose application under article 10(1) or (2) has been granted, or whose application under article 12(4) in respect of a particular election has been granted, the absent voter shall not be entitled to vote by post, by proxy or by post as proxy (as the case may be) at the particular election for which the application was made, otherwise than in pursuance of a further application made under article 9, 10 or 12.
2
Where an absent voter ceases to be entitled to vote by post, by proxy or by post as proxy in the circumstances to which paragraph (1) refers–
a
the registration officer shall inform the absent voter of the location of the polling station to which the absent voter has been allotted, or is likely to be allotted, under rule 35 of Schedule 2, unless that voter is not likely to be allotted to a polling station;
b
paragraphs 8(4) and 9 of Schedule 3 shall apply as if the registration officer were refusing an application under article 9, 10, 11 or 12; and
c
in the case of an absent voter who ceases to be entitled to vote by post as proxy, the registration officer must also notify the elector for whom the proxy was appointed.
3
The registration officer shall include in the notice to be sent to an absent voter pursuant to paragraph (2), information–
a
explaining the effect of removal from the absent voting records (where applicable); and
b
reminding the absent voter that he or she may make a fresh application under article 9, 10 or 12 to vote by post, by proxy or by post as a proxy (as the case may be).
PART 4
Miscellaneous Amendments
Amendment of article 8
25
In article 8(8) (manner of voting) for “the absent voter list” substitute “any of the lists kept under articles 10(5) and 12(7)”.
Amendment of Schedule 2
26
1
Schedule 2 is amended as follows.
2
In rules 10(3), 19(5), 20(6), 37(5), 47(2), 49(1) and 73(1), for “paragraph” substitute “rule”.
3
In rule 17(8), for “Subject to paragraph (7), nothing in this paragraph” substitute “Subject to paragraph (7), nothing in this rule”.
Amendment of Schedule 5
27
1
Schedule 5 is amended as follows.
2
In paragraph 7 for “(5)” substitute “(6)”.
3
In paragraph 11 for “(9)” substitute “(8)”.
DAVID CAIRNS
Minister of State Scotland Office
Dover House,
London,
6th February 2008


text:
Citation and interpretation
1
This Order may be cited as the Traffic Management Act 2004 (Commencement No. 5 and Transitional Provisions) (England) (Amendment) Order 2008.
Preliminary
2
The Traffic Management Act 2004 (Commencement No. 5 and Transitional Provisions) (England) Order 2007 shall be amended in accordance with the following provisions of this Order.
Additional definition
3
In article 1(2) —
a
“and” shall be omitted; and
b
for “31st March 2008.” there shall be substituted “31st March 2008; and”; and
c
the following definition shall be added at the end —
“the transitional period”, in relation to a provision modified by this Order, means the period beginning with the second appointed day and ending on the day on which the repeal of that provision comes into force.
Provisions not commenced on the second appointed day
4
1
Article 3(2) shall be amended as follows.
2
In subparagraph (h) —
a
in paragraph (i) “and (1B)” and “and (2A)” shall be omitted;
b
in paragraph (iv) “5,” shall be omitted;
c
in paragraph (vi) for “the definition of “special parking area” in section 3(1) and sections 4 to 14” there shall be substituted “sections 4, 5, 7 and 8”; and
d
for paragraph (vii) there shall be substituted —
vii
in the London Local Authorities and Transport for London Act 2003 , section 15.
Transitional modifications
5
The following articles shall be added after article 4 —
Transitional modifications of the London Local Authorities Act 1996
5
1
The London Local Authorities Act 1996 shall, during the transitional period, apply as if it were subject to the following modifications.
2
In section 3(1) —
a
the definition of “the Act of 1991” is omitted;
b
for “established under section 73 of the Act of 1991” in the definition of “Joint Committee” there is substituted “appointed pursuant to regulation 15 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007” .
3
In section 6 —
a
in subsection (1) for “parking adjudicators under section 73 of the Act of 1991” there is substituted “adjudicators under regulation 17 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007”;
b
for subsection (2) there is substituted —
2
The Road Traffic (Parking Adjudicators) (London) Regulations 1993 shall (despite the repeal of section 73(11) and (12) of the Road Traffic Act 1991 under which the Regulations were made) continue in force for the purpose of applying in relation to proceedings before traffic adjudicators under this Act, and for that purpose section 73(11) to (13) shall continue to have effect.
;
c
for subsection (3) there is substituted —
3
Regulations 12(6) and (7) (reports by adjudicators and joint committee), 19 (power to require attendance and production of documents) and 25 (recovery of amount payable under an adjudication) of the Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005 shall apply —
a
to traffic adjudicators as they apply to adjudicators appointed under those Regulations; and
b
to the Joint Committee as they apply to the Joint Committee appointed under those Regulations,
but regulation 25 of those Regulations shall not apply to a penalty charge under this Part of this Act which remains payable following an adjudication under paragraph 6 of Schedule 1 to this Act.
4
For section 8 there is substituted —
Setting the levels of penalty charges
8
Part 2 of Schedule 9 (except paragraph 6) to the Traffic Management Act 2004 and regulation 24 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 shall apply to the levels of charges under this Act as they apply to the levels of charges relating to parking contraventions under the 2004 Act .
5
In Schedule 1 for paragraph 9(3) there is substituted —
3
Sections 82 and 83 of the Traffic Management Act 2004 shall have effect as though an increased penalty charge recoverable under sub-paragraph (1) above were a traffic contravention debt for the purposes of those sections.
Transitional modification of the Transport Act 2000
6
1
The Transport Act 2000 shall, during the transitional period, apply as if it were subject to the following modification.
2
In section 144(3) for paragraph (a) there is substituted —
a
an order designating the whole or any part of its area as a civil enforcement area for parking contraventions has been made under paragraph 8(1) of Schedule 8 to the Traffic Management Act 2004;
.
Transitional modifications of the London Local Authorities Act 2000
7
1
The London Local Authorities Act 2000 shall, during the transitional period, apply as if it were subject to the following modifications.
2
In section 3(1) —
a
the definition of “the Act of 1991” is omitted;
b
the following definitions are inserted at the appropriate places —
“the 2004 Act” means the Traffic Management Act 2004;
“the Parking General Regulations ” means the Civil Enforcement of Parking Contraventions (England) General Regulations 2007;
“the Parking Representations and Appeals Regulations ” means the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 ;
; and
c
for the definitions of “parking adjudicator”, “parking attendant” and “special parking area” there are substituted —
“parking adjudicator” means an adjudicator appointed under regulation 17 of the Parking General Regulations by the London authorities as defined by section 92(1) of the 2004 Act;
“parking attendant” means a person who is a civil enforcement officer in accordance with section 76 of the 2004 Act;
“special parking area” means an area which is a civil enforcement area for parking contraventions in accordance with Schedule 8 to the 2004 Act.
3
In section 9 —
a
for “section 69 or 77 of the Act of 1991” there is substituted “regulation 12(1) of the Parking General Regulations”; and
b
for paragraphs (b) and (c) there is substituted —
b
regulation 14(2)(a) or (b) of the Parking General Regulations.
4
For section 11(1) there is substituted —
1
The relevant person may make representations to the participating council —
a
in the case of a vehicle to which an immobilisation device has been fixed, on one or more of the grounds specified in regulation 8(5) of the Parking Representations and Appeals Regulations; or
b
in the case of a vehicle which has been removed, on one or more of the grounds specified in regulation 11(5) of those Regulations.
5
In section 11(7) for “Schedule 6 to the Act of 1991” there is substituted “regulation 4 of the Parking Representations and Appeals Regulations”.
6
In section 14(1) for “Schedule 6 to the Act of 1991 (which provides, among other things, for parking penalties) shall not” there is substituted “Neither Part 5 of the Parking General Regulations nor Part 2 of the Parking Representations and Appeals Regulations shall apply”.
Transitional modifications of the London Local Authorities and Transport for London Act 2003
8
1
The London Local Authorities and Transport for London Act 2003 shall, during the transitional period, apply as if it were subject to the following modifications.
2
In section 4 —
a
in subsection (6)(b) for “section 77 of the Road Traffic Act 1991” there is substituted “regulation 4(b) of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007”;
b
in subsection (12), for the words from “sections 74” to the end there is substituted “Part 2 of Schedule 9 to the Traffic Management Act 2004 (c. 18) as it applies in relation to the levels of penalty charges under that Part of that Schedule”;
c
in subsection (13) for “section 74” there is substituted “Part 2 of Schedule 9”; and
d
in subsection (16) for “established under section 73 of the Road Traffic Act 1991” in the definition of “Joint Committee” there is substituted “appointed pursuant to regulation 15 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007”.
3
In section 14(8) for the definition of “special parking area” there is substituted —
“special parking area” means an area which is a civil enforcement area for parking contraventions in accordance with Schedule 8 to the Traffic Management Act 2004 (c. 18) ;
.
4
In Schedule 1 —
a
in paragraph 6 for sub-paragraph (3) there is substituted —
3
Sections 82 and 83 of the Traffic Management Act 2004 shall have effect as though an increased penalty charge recoverable under sub-paragraph (1) were a traffic contravention debt for the purposes of those sections.
b
in paragraph 10 —
i
in sub-paragraph (1) for “parking adjudicators under section 73 of the Road Traffic Act 1991 (c. 40) ” there is substituted “adjudicators under regulation 17 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 ( S.I. 2007/3483 )”;
ii
for sub-paragraphs (2) and (3) there is substituted —
2
The Road Traffic (Parking Adjudicators) (London) Regulations 1993 shall (despite the repeal of section 73(11) and (12) of the Road Traffic Act 1991, under which the Regulations were made) continue in force for the purpose of applying to proceedings before traffic adjudicators under this Act, and for that purpose section 73(11) to (13) shall continue to have effect.
3
Regulations 12(6) and (7) (reports by adjudicators and joint committee), 19 (power to require attendance and production of documents) and 25 (recovery of amount payable under an adjudication) of the Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005 shall apply —
a
to traffic adjudicators as they apply to adjudicators appointed under those Regulations; and
b
to the Joint Committee as they apply to the Joint Committee appointed pursuant to those Regulations,
but regulation 25 of those Regulations shall not apply to a penalty charge under section 4 of this Act which remains payable following an adjudication under this Schedule.
Signed by authority of the Secretary of State for Transport
Rosie Winterton
Minister of State
Department for Transport
17th March 2008