LEZ penalties enforceable despite administrative error

In an important decision for Glasgow City Council, the Inner House has found that a penalty charge notice (PCN) issued for contravening the Glasgow Low Emission Zone (LEZ) is enforceable, even though it was not served by registered or recorded delivery as required by law.

LEZ penalties

LEZ schemes were introduced by the Transport (Scotland) Act 2019 to combat air pollution by restricting the entry of non-compliant vehicles into designated areas. Glasgow’s LEZ came into effect on 1 June 2023. In August 2023, Glasgow City Council issued a PCN to a driver for bringing a non-compliant vehicle into the LEZ. However, the PCN was sent by ordinary post instead of the prescribed registered or recorded delivery.

Tribunal decisions

The driver appealed the PCN which the First-tier Tribunal granted, ruling the PCN unenforceable. The Upper Tribunal also upheld this decision, finding that proper service was mandatory for the PCN to be effective.

Court’s analysis

The Council appealed to the Inner House of the Court of Session, focusing on the purpose of the procedural rule within the statutory scheme and whether Parliament intended non-compliance with the technical postage requirements to result in total invalidity of the PCN.

The court applied the principles from R v Soneji, a House of Lords case which established a more flexible approach than a requirement for rigid compliance with all technical conditions.

The court concluded that:

• The statutory scheme did not indicate that liability depended on a particular method of service.
• The purpose of requiring service by registered or recorded delivery was to ensure verifiable proof of service.
• In this case, the driver accepted that he received the notice and was fully informed of his rights and obligations.

Decision

The court adopted a more nuanced approach than was taken by the Tribunals and found that the purpose of the procedural requirements was fulfilled, and the driver’s interests were not adversely affected. The substantive outcome of the scheme was achieved, and the procedural protections were satisfied. Therefore, the court inferred that Parliament did not intend the PCN to be unenforceable due to the procedural omission.

The court allowed the appeal, set aside the judgments of the First-tier and Upper Tribunals, and remitted the case to a freshly constituted First-tier Tribunal to address the driver’s appeal on its merits.

Implications

This decision highlights that minor procedural lapses, which do not affect the substantive rights of the parties involved, should not undermine the legislative intent and objectives of important regulatory schemes like the LEZ.

The judgment provides clarity on the enforcement of PCNs and reinforces the principle that procedural rules should not be allowed to defeat substantive justice.

Please contact Harper Macleod’s public sector team for advice on any issues relating to establishing and enforcing statutory schemes.