The Control of Off-Street Parking (England and Wales) Order 1978

THE SCHEDULECONTROL OF OFF-STREET PARKING

PART IProvisions as to making of regulations

1.—(1) Before deciding to propose the making of regulations under this Order with respect to any matter, the county council shall consult with such representative organisations as they think fit and, if after such consultation they decide to make such a proposal, they shall cause to be published in the London Gazette and in one or more local newspapers circulating in the area to which the regulations will relate a notice stating that they propose to make such regulations, giving a summary of their effect, and specifying—

(a)a place at which provisional draft regulations may be inspected at all reasonable hours and from which a copy of those draft regulations may be obtained on request; and

(b)a date (not being earlier than six weeks after the date of publication of the notice) by which representations with respect to the draft regulations, which should include the grounds for any objection thereto, must be sent in writing to the county council;

and on causing such a notice to be published the county council shall send a copy of the notice and of the draft regulations to the Secretary of State and to each local authority the whole or part of whose area is for the time being, or would under the draft regulations become, a controlled area; and the county council shall not make any regulations in pursuance of the proposal to which the notice relates before the expiration of the period of twelve weeks beginning with the date when the notice is published.

(2) Before deciding to propose the designation of a controlled area under this Order, the county council shall consult organisations representative of the disabled.

2.—(1) As soon as may be after the date specified by the notice aforesaid for the making of representations with respect to the draft regulations, the county council shall send to the Secretary of State copies of all representations received by them by that date or, if no representations have been so received, shall inform the Secretary of State in writing of that fact.

(2) If representations are received by the county council from organisations representative of the disabled about the proposal to designate a controlled area, the county council shall send to the Secretary of State (together with copies of the other representations (if any) received as mentioned in sub-paragraph (1) of this paragraph) a statement of how parking requirements of the disabled arising from implementation of the proposal are met by existing facilities or, if in the opinion of the county council they are not already so met, how it is intended to meet them.

3.  In the case of any proposal to make regulations under this Order, the Secretary of State may at any time before the expiration of the period of twelve weeks aforesaid give to the county council a direction in writing that, except with the consent of the Secretary of State, regulations shall not be made in pursuance of that proposal—

(a)with respect to all, or with respect to such as may be specified, of the matters to which the proposal relates; or

(b)in relation to, or to a specified part of, any specified area which has been or is proposed to be designated as a controlled area;

and on any such direction being given the Secretary of State shall cause notice thereof to be published in the London Gazette and the county council shall comply with that direction.

4.—(1) Where in the case of any such proposal as aforesaid to make regulations the Secretary of State has given such a direction as aforesaid, he shall as soon thereafter as he is in a position to do so notify the county council in writing with respect to each of the matters or areas to which the direction relates either—

(a)that he consents to the making of regulations with respect to that matter or in relation to that area in pursuance of that proposal; or

(b)that he is not prepared in any circumstances to consent to the making of such regulations in pursuance of that proposal; or

(c)that subject to sub-paragraph (2) of this paragraph he is prepared to consider consenting to the making of such regulations in pursuance of that proposal if a revised draft is submitted to him for the purpose incorporating modifications of a specified nature or in other specified circumstances;

and before deciding the notification to be given to the county council under this paragraph with respect to any matter or in relation to any area the Secretary of State may if he thinks fit appoint a person to hold an inquiry in connection with that matter or area, and subsections (2) to (5) of section 250 of the Local Government Act 1972 shall apply to any such inquiry.

(2) The Secretary of State shall not consider any such revised draft as is referred to in sub-paragraph (1)(c) of this paragraph unless he is satisfied that the county council—

(a)have taken appropriate steps to inform any persons affected by the modifications incorporated in the revised draft of the nature of those modifications and have afforded those persons a reasonable opportunity to make representations with respect to the revised draft regulations; and

(b)have supplied the Secretary of State with copies of any such representations made.

5.—(1) In the case of any such proposal as aforesaid to make regulations the county council may if they think fit at any time after the expiration of the period of twelve weeks aforesaid make regulations in pursuance of that proposal with respect to any matter or in relation to any area which is not the subject of a direction under paragraph 3, or which is the subject of a consent under paragraph 4(1)(a), of this Schedule, being regulations either—

(a)in the form of the provisional draft with any modifications necessary in consequence of any such direction with respect to any other matter or area; or

(b)subject to sub-paragraph (2) of this paragraph, in the form of that draft modified in such manner as the county council thinks fit, whether as a result of any representations to which paragraph 2 of this Schedule applies or otherwise.

(2) The county council shall not make any regulations by virtue of sub-paragraph (1)(b) of this paragraph unless a draft of the regulations in the form in which they are to be made has been submitted to the Secretary of State and the Secretary of State has given his consent to their being made.

6.  In deciding in the case of any such proposal as aforesaid whether or not to make any regulations in pursuance thereof by virtue of paragraph 5 of this Schedule the county council shall have regard to any representations to which paragraph 2 of this Schedule applies; and in deciding whether or not to give any consent under this Part of this Schedule to the making of regulations by the county council in pursuance of any such proposal, the Secretary of State shall have regard to any such representations, to the report of any person appointed to hold an inquiry under paragraph 4 of this Schedule in connection with the proposal in question, and to any such representations as are referred to in sub-paragraph (2) of the said paragraph 4; and the Secretary of State shall cause notice of the giving by him of any consent under this Part of this Schedule to be published in the London Gazette.

PART IIRevocation or variation of permanent licence

7.  Subject to the provisions of Parts III and IV of this Schedule with respect to appeals and compensation, the provisions of this Part of this Schedule shall apply in relation to any permanent licence granted by the local authority.

8.  If at any time it appears to the local authority expedient to do so in the interests of the proper planning of transport in the county of which their area forms part, they may by not less than twelve months notice in writing to the holder of the licence either—

(a)revoke the licence; or

(b)vary the terms and conditions thereof specified under Article 7(b) and (c) of this Order.

9.  If at any time it appears to the local authority that the holder of a licence (whether the person for the time being holding that licence or a previous holder thereof) has discontinued making parking spaces available to the public at the licensed parking place and that the discontinuance has lasted for a period of not less than two years, then, subject to paragraph 13 of this Schedule, they may by notice in writing to the holder of the licence revoke it.

10.  If at any time it appears to the local authority that for a period of not less than two years the person, or each of the persons, who was for the time being during that period the holder of a licence in respect of a licensed parking place has made available to the public at that parking place a substantially lower number of parking spaces than that authorised by the licence, then, subject to paragraph 13 of this Schedule, they may by notice in writing to the holder of the licence vary the terms and conditions of the licence specified under the said Article 7(b) and (c) so as to authorise the provision at the licensed parking place of only that number of parking spaces which it appears to the local authority was being provided at the date of the notice.

11.  If in the case of a licensed parking place which was ready for operation at the date of the grant of the licence the local authority are satisfied at any time that for a period of not less than two years beginning with that date the person, or each of the persons, who was for the time being during that period the holder of the licence has not made any significant number of parking spaces available to the public at the licensed parking place, then, subject to paragraph 13 of this Schedule, they may by notice in writing to the holder of the licence revoke it.

12.—(1) Where at the date when the licence was granted the development as a public off-street parking place of the premises in respect of which the licence was granted had not been begun or had not been completed then, subject to paragraph 13 of this Schedule—

(a)if there has been a period of not less than three years since that date without that development being begun, or

(b)if there has been a period of not less than seven years since that date without that development being completed, or

(c)if for a period of not less than two years beginning with the date of the completion of that development the person, or each of the persons, who was for the time being during that period the holder of the licence has not made any significant number of parking spaces available to the public at the licensed parking place,

the local authority may by notice in writing to the holder of the licence revoke it.

(2) For the purposes of the foregoing sub-paragraph, the development there referred to shall be taken to begin at the earliest date on which any specified operation within the meaning of section 43(2) of the Town and Country Planning Act 1971 comprised in that development begins to be carried out.

13.  Where notice under paragraph 9, 10, 11 or 12(1) of this Schedule is given after the expiration of the relevant period referred to in the paragraph in question the notice shall be of no effect if it is given more than three months after the expiration of that period.

PART IIIRights of appeal

14.—(1) If a person who is, or who proposes to become, the operator of a public off-street parking place in a controlled area or any other person entitled to an interest in the premises used or proposed to be used for the purposes of that parking place is aggrieved by a decision of the local authority—

(a)to refuse an application for the grant of a licence in respect of those premises; or

(b)as to the terms and conditions to be specified under Article 7(b) and (c) of this Order in a licence granted in respect of those premises; or

(c)to refuse an application for a variation of the terms and conditions so specified in a permanent licence granted in respect of those premises; or

(d)to revoke a licence granted in respect of those premises; or

(e)to vary under Part II of this Schedule any of the terms and conditions specified under the said Article 7(b) and (c) in a permanent licence granted in respect of those premises,

he may by notice served within such time (not being less than twenty-eight days from the date of notification of the decision to which it relates) and in such manner as the Secretary of State may by regulations under paragraph 17 of this Schedule direct, appeal to the Secretary of State from that decision.

(2) If in a case where—

(a)a person makes an application to the local authority for a licence in respect of premises in respect of which a licence is not for the time being in force; or

(b)the person who is the holder of a permanent licence in respect of any premises duly makes an application to the local authority for a specified variation of the terms and conditions of the licence specified under the said Article 7(b) and (c),

the local authority have not notified that person of their decision on his application by the expiration of the period of two months beginning with the date when they received the application or such longer period beginning with that date as may have been agreed for the purpose between that person and the local authority, the local authority shall be deemed for the purposes of this Schedule to have notified that person at the date of the expiration of that period that they have decided to refuse the application.

15.  The Secretary of State shall not be required to entertain an appeal under this Part of this Schedule from any decision of a local authority if or to the extent that it appears to him that the decision was necessary in order to comply with the requirements of this Order or with any regulations made by the county council by virtue of Article 4 of this Order which are for the time being in force.

16.—(1) Subject to sub-paragraph (2) of this paragraph, before determining an appeal under this Part of this Schedule the Secretary of State shall, if either the appellant or the local authority so request, afford to each of them an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose.

(2) If the Secretary of State thinks fit in any case where such a request as aforesaid is made, he may, instead of complying with that request, appoint a person to hold an inquiry in connection with the appeal, and subsections (2) and (5) of section 250 of the Local Government Act 1972 shall apply to any such inquiry.

17.—(1) The Secretary of State may by regulations make provision as to the procedure to be followed in connection with appeals under this Part of this Schedule, including the procedure in connection with matters preparatory to, or subsequent to, the consideration of the appeal.

(2) Any such regulations shall include provision for the giving of notice to the county council of any appeal under this Part of this Schedule and of any request made under paragraph 16(1) thereof, and for enabling the county council to make representations with respect to the matter in question and to appear before and be heard by any person appointed by the Secretary of State for the purposes of sub-paragraph (1) or (2) of the said paragraph 16.

(3) Any regulations under this paragraph shall be made by statutory instrument and be subject to annulment in pursuance of a resolution of either House of Parliament.

18.—(1) On an appeal being brought under this Part of this Schedule from a decision of the local authority, the Secretary of State may either dismiss the appeal or substitute for that decision such other decision, as he thinks fit; and, subject to sub-paragraph (2) of this paragraph, the decision of the Secretary of State on the appeal shall be final and shall be binding both on the appellant and on the local authority, and the local authority shall take such steps as may be necessary to give effect to any such substituted decision.

(2) Subsection (1) of section 13 of the Tribunals and Inquiries Act 1971 (which relates to appeals on points of law from decisions of certain tribunals) shall apply to a decision of the Secretary of State on an appeal under this Part of this Schedule as it applies to a decision of any of the tribunals mentioned in that subsection, but as if the reference to any party to proceedings before such a tribunal were a reference to the local authority or any person who had, or if aggrieved would have had, a right to appeal to the Secretary of State under this Part of this Schedule, whether or not he has exercised that right, and accordingly references in subsections (1) and (3) of that section to a tribunal shall be construed in relation to such an appeal as references to the Secretary of State.

PART IVRight to compensation in certain circumstances

19.  Where a person who, at the date when an area is first designated as a controlled area by regulations of the county council under this Order, is the operator of a public off-street parking place at premises in that area which have at that date been used as such a parking place for a continuous period of not less than six months duly makes an application to the local authority for a licence in respect of those premises before the expiration of the period prescribed for such applications in respect of parking places in operation at that date, and the local authority decide either—

(a)to refuse the application; or

(b)to grant the applicant a licence on terms and conditions specified under Article 7(b) and (c) of this Order such that under the licence the applicant will not be able to operate the premises as a parking place to such advantage or potential advantage as immediately before he made his application,

paragraph 22 of this Schedule shall apply to that decision of the local authority.

20.  Where—

(a)at the date when notice of a proposal to make regulations under this Order designating an area as a controlled area is published by the county council under paragraph 1 of this Schedule—

(i)planning permission has been granted for a development which consists of or includes the provision at any premises in that area of a public off-street parking place; and

(ii)that development involves substantial building or engineering operations within the meaning of section 290(1) of the Town and Country Planning Act 1971; and

(iii)either one or more specified operations within the meaning of section 43(2) of the said Act of 1971 comprised in that development have begun to be carried out or a contract (other than a lease) has been entered into with a person carrying on a business consisting wholly or mainly of the execution of building operations or of building operations and engineering operations whereby that person has undertaken to erect in the course of that business at the said premises a building or structure as a place for the provision of parking spaces for motor vehicles; and

(b)at the date when the area is designated as a controlled area in pursuance of that proposal those premises have not been in use as such a parking place to the full extent provided for by the planning permission for a continuous period of not less than six months; and

(c)the person operating or proposing to operate those premises as such a parking place duly makes application to the local authority for a licence in respect of those premises before the expiration of the period prescribed for such applications in respect of parking places in operation at the date referred to in sub-paragraph (b) of this paragraph; and

(d)the local authority decide either—

(i)to refuse the application; or

(ii)to grant the applicant a licence on terms and conditions specified under Article 7(b) and (c) of this Order such that under the licence the applicant will not be able to operate the premises as such a parking place to such advantage or potential advantage as if the area had not been designated as a controlled area,

paragraph 22 of this Schedule shall apply to that decision of the local authority—

21.  Paragraph 22 of this Schedule shall apply to any decision of the local authority—

(a)to revoke a permanent licence under paragraph 8 of this Schedule; or

(b)to vary under the said paragraph 8 any of the terms and conditions specified in a permanent licence under the said Article 7(b) and (c) in such manner that the holder of the licence will not be able to operate the licensed parking place to such advantage or potential advantage as if the variation had not been made; or

(c)to refuse an application by the holder of a permanent licence for a specified variation of the terms and conditions specified under the said Article 7(b) and (c) in a case where—

(i)by reason of a happening beyond the control of the holder of the licence he cannot continue to operate the licensed parking place in accordance with the licence as for the time being in force to such advantage or potential advantage as before that happening; and

(ii)the making of that variation would wholly or partly mitigate the adverse effects of that happening without enabling the holder of the licence to operate the licensed parking place to greater advantage or potential advantage than before that happening.

22.—(1) If, on a claim made to the local authority in writing within the period of six months or such longer period as may be allowed under sub-paragraph (2) of this paragraph beginning with the date when the person who is, or who proposes to become, the operator of a public off-street parking place is, or is deemed under paragraph 14(2) of this Schedule to have been, notified of a decision of the local authority under any provision of this Order relating to that parking place, that person or any other person entitled to an interest in the premises used or proposed to be used for the purposes of that parking place shows that the decision is one to which, under paragraph 19, 20 or 21 of this Schedule, this paragraph is to apply and that the claimant has suffered damage in consequence of that decision by depreciation of the value of his interest in those premises, or by being disturbed in his enjoyment of those premises, the local authority shall pay the claimant compensation in respect of that damage.

(2) If within the period of six months referred to in sub-paragraph (1) of this paragraph any such person as is referred to in that sub-paragraph has made an application to the Secretary of State for that purpose and has given notice to the local authority of the making of that application, the Secretary of State may, if he thinks fit in the circumstances of the case, direct that the said sub-paragraph (1) shall apply in relation to the decision in question as if for the reference in that sub-paragraph to six months there were substituted a reference to such longer period as the Secretary of State thinks fit.

(3) For the purpose of determining whether or not a claimant has suffered such damage as aforesaid, there shall be taken into account any alternative use to which the premises aforesaid could reasonably be put, being a use in the case of which the local authority show either—

(a)that any necessary planning permission, whether conditional or unconditional, for that use has already been granted; or

(b)that the local planning authority have given an undertaking that if planning permission for that use is applied for it will be granted either unconditionally or subject to specified conditions;

and in a case where this paragraph applies by virtue of paragraph 21(c) of this Schedule there shall also be taken into account any alternative variation to that applied for by the holder of the licence in question which the local authority have undertaken to grant on an application being made for that purpose.

(4) Section 178 of the Town and Country Planning Act 1971 shall apply to any compensation payable under sub-paragraph (1) of this paragraph in respect of depreciation of the value of a claimant's interest in the premises aforesaid; and any question as to the right to, or the amount of, compensation under the said sub-paragraph (1) shall be referred to and determined by the Lands Tribunal, and in relation to the determination of any such question the provisions of sections 2 and 4 of the Land Compensation Act 1961 shall apply subject to any necessary modifications.

(5) Where compensation has become payable under sub-paragraph (1) of this paragraph in respect of an interest in any premises and subsequently an order with respect to the use of those premises as a parking place is made under section 45 or section 51 of the said Act of 1971, the amount of that compensation shall be taken into account in assessing any compensation on a claim by reason of expenditure, loss or damage in consequence of that order made in respect of that interest under section 164 or, as the case may be, section 170 of that Act.

(6) Where any expenses are incurred by a local authority in the payment of compensation under sub-paragraph (1) of this paragraph in consequence of a decision of theirs, then, if or to any extent to which it appears to the Secretary of State that the decision was attributable to regulations made by the county council under Article 4 of this Order, the Secretary of State may, if it appears to him to be expedient to do so, require the county council to contribute towards those expenses such sum as appears to him to be reasonable.

23.  Where notice of appeal from any such decision of the local authority as is referred to in paragraph 19, 20 or 21 of this Schedule has been duly given under Part III of this Schedule—

(a)paragraph 22 of this Schedule shall not have effect in relation to that decision until that appeal is determined or abandoned;

(b)the person who is, or who proposes to become, the operator of a public off-street parking place at the premises to which the decision relates shall be deemed for the purposes of the said paragraph 22 to have been notified of the local authority's decision on the date when the appeal is determined or abandoned; and

(c)if on that appeal the Secretary of State substitutes a different decision for that of the local authority, the local authority shall be deemed for the purposes of the said paragraph 22 to have made that substituted decision and not their original decision.

24.  Where, in the case of a decision of the local authority relating to any premises, paragraph 22 of this Schedule applies to that decision both by virtue of paragraph 19 and by virtue of paragraph 20 of this Schedule, then—

(a)upon the person who is, or who proposes to become, the operator of a public off-street parking place at those premises making a claim in respect of that decision under the said paragraph 22 by virtue of either of the said paragraphs 19 and 20, any subsequent claim in respect thereof by that person by virtue of the other of those paragraphs, and any claim in respect thereof made whether before or after that person's claim by any other person by virtue of the other of those paragraphs, shall be of no effect; and

(b)subject to the foregoing sub-paragraph, if a claim in respect of that decision is made under the said paragraph 22 by any person by virtue of either of the said paragraphs 19 and 20 any subsequent claim in respect thereof by virtue of the other of those paragraphs shall be of no effect.

PART VPermissible periods of unlicensed operation of parking place

25.  Where, at the date when any area first becomes a controlled area, a person is operating a public off-street parking place in that area, he shall not be guilty of an offence under Article 14 of this Order by reason of continuing to operate the parking place after that date without a licence—

(a)at any time before the expiration of the period prescribed for the making of applications for licences in respect of parking places in operation at that date; or

(b)if during that period he duly makes an application for a licence in respect of the parking place, at any time before the expiration of that period but before the local authority notify him either that he has been granted a licence or that his application is refused; or

(c)if the local authority notify him that his application is refused, at any time thereafter before the expiration of the time for giving notice of appeal from that decision under Part III of this Schedule; or

(d)if such a notice of appeal is duly given, at any time thereafter until either the local authority's decision becomes finally effective under the procedure provided for by the said Part III or the licence is granted.

26.  Where in pursuance of the application referred to in sub-paragraph (b) of paragraph 25 of this Schedule the person referred to in that paragraph is granted a licence, he shall not be guilty of an offence under Article 12 of this Order by reason of contravening or failing to comply with any of the terms and conditions specified in the licence under Article 7(b) and (c) of this Order—

(a)at any time before the expiration of the time for giving notice of appeal under Part III of this Schedule from the decision of the local authority as to those terms and conditions; or

(b)if such a notice of appeal is duly given, at any time thereafter until either the local authority's decision becomes finally effective under the procedure provided for by the said Part III or the terms and conditions specified as aforesaid in the licence are varied as a result of that procedure.

27.  Where the operator of a public off-street parking place who is the holder of a licence in respect of that parking place granted for a limited period duly makes an application to the local authority before the date of expiry of that licence for a new licence (whether permanent or for a limited period) authorising the operation of that parking place for a further period after that date, then, if and for so long as he continues to operate that parking place after that date in accordance with the terms and conditions of the expired licence (other than the provision as to its date of expiry)—

(a)he shall not be guilty of an offence under the said Article 14 by reason of operating the parking place after the date aforesaid without a licence—

(i)at any time before the local authority notify him either that he has been granted a new licence in respect of the parking place or that his application is refused; or

(ii)if the local authority notify him that his application is refused, at any time thereafter before the expiration of the period for giving notice of appeal from that decision under Part III of this Schedule; or

(iii)if such a notice of appeal is duly given, at any time thereafter until either the local authority's decision becomes finally effective under the procedure provided for by the said Part III or a new licence is granted;

(b)where he is granted a new licence in pursuance of the application aforesaid, he shall not be guilty of an offence under Article 12 of this Order by reason of contravening or failing to comply with any of the terms and conditions specified in that new licence under Article 7(b) and (c) of this Order—

(i)at any time before the expiration of the time for giving notice of appeal under Part III of this Schedule from the decision of the local authority as to those terms and conditions; or

(ii)if such a notice of appeal is duly given, at any time thereafter until either the local authority's decision becomes finally effective under the procedure provided for by the said Part III or the terms and conditions specified as aforesaid in the new licence are varied as a result of that procedure.