Glasgow City Council lose appeal against dismissal of invalidly served LEZ penalty notice

About this case:

• Citation:
  2024UT26
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Lord Lake

Allan Hamilton was sent a PCN via ordinary post by Glasgow City Council, which he contended on appeal made it unenforceable as there was a requirement for recorded delivery. While the Council accepted that the PCN had been erroneously sent by the wrong method, this defect in service did not make it unenforceable.

The appeal was heard by Lord Lake in the Upper Tribunal for Scotland.

Consequence of defect

After receiving the PCN, Mr Hamilton made representations to the Council, and when those were rejected he appealed to the First-tier Tribunal. The Adjudicator considering the appeal took the view that there was a preliminary issue he had to consider, namely whether the PCN had been validly served. The method of service of a PCN was not specified by the Low Emission Zones (Emission Standards, Exemptions and Enforcement) (Scotland) Regulations 2021.

While the 2021 Regulations were silent on the issue, it was noted that section 26 of the Interpretation and Legislative Reform (Scotland) Act 2010 provided that the term “serve” meant being delivered personally or sent to the person’s proper address by a registered post or recorded delivery service. The Adjudicator thereafter considered whether the requirement in the legislation was to be regarded as mandatory or merely permissive.

Having regard to case law, the Adjudicator concluded that the service of a PCN was fundamental to the operation of the LEZ enforcement regime, noting the ability to reduce the penalty if paid within 14 days, and therefore a verifiable method of service was crucial. As a result, the PCN served on Mr Hamilton was invalid.

On appeal to the Upper Tribunal, the Council argued that approaching the matter by considering whether the statutory requirement was mandatory was not the correct approach. They framed the issue, per R v Soneji (2006) as whether Parliament could fairly be taken to have intended total invalidity to be a consequence of the defect in question, and in this case it could not have been.

In response, Mr Hamilton adopted the reasoning of the adjudicator. He noted that the Council had since changed its practices to send all PCNs by tracked post, and argued this was an acknowledgement that there was a defect in the notice sent to him.

Key part of notice

In his decision, Lord Lake began: “As the most recent authoritative statement of the correct approach is that in Soneji, that is the approach I adopt. The issue of therefore whether Parliament intended that as failure to comply with the stated requirements as to service to be that the notice was invalid. As is generally the case when the issue of the intention of Parliament arises, the search is not for an actual intention but for one to be inferred from considering the wording of all parts of the legislation in question and the operation of the scheme that is established by the legislation in question.”

Determining the point at which liability for the penalty arose, he said: “The PCN plays a key part in the enforcement regime. As it is important in all these respects it is understandable that Parliament would have wished to ensure that there was a way that the service could be proved. I therefore agree with the adjudicator that having a mode of service which means that both the fact of delivery and the date on which it was completed can be verified is crucial.”

He went on to say: “I reject the Council’s contention that liability to pay a penalty is not linked to service of a PCN. There is a clear link in [2021 Regulations] section 7(4) and this, together the extent to which it is apparent that the Notice and its contents play a key part in the enforcement notice and the means stipulated for service, support an inference that Parliament intended that the valid service of notice in accordance with these requirements is necessary if a penalty is to be enforced.”

Lord Lake concluded: “That there has been no substantive unfairness to Mr Hamilton is not a relevant consideration. The issue that has been raised is resolved by considering the intention of Parliament when the legislation in question was passed. The circumstances of service of a particular PCN sometime later have no bearing on that intention.”