Glasgow LEZ penalty appeal based on inadequate proof of non-compliance sent back to First-tier Tribunal

About this case:

• Citation:
  2025UT10
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff Dunipace

Damion Spittles initially challenged the notice from Glasgow City Council before the General Regulatory Chamber of the First-tier Tribunal for Scotland, but his appeal was refused after the Tribunal found in fact that his vehicle was non-compliant. On appeal he argued that the council had not followed section 7(2) of the Transport (Scotland) Act 2019 in providing the required standard of proof that his vehicle did not meet the emission standards.

The appeal was heard by Sheriff Colin Dunipace. The appellant was represented by Dr Yvonne Spittles, and the respondent by David Blair, advocate, with the appeal decided solely based on written submissions.

Details from the DVLA

On 26 April 2024, the respondent issued a Low Emission Zone Penalty Charge Notice against the appellant alleging that he had driven a non-compliant vehicle, a 2013 Ford diesel model, in the Argyle area of Glasgow. An appeal was made to the FTS, which dismissed the application on the basis that the vehicle did not comply with the requirements. In evidence, the council produced a screenshot of an online emissions checker which identified the vehicle as non-compliant.

In his application for permission to appeal, the appellant said that the online emissions checker used by the council to check vehicle compliance had disclaimers in its use that said that it may not be accurate and noted that it also said that the council would obtain emission details from the DVLA to ratify the online emissions findings. However, the council failed to obtain such certification or present any additional evidence to the FTS.

It was asserted by the appellant that the respondent had the opportunity to obtain vehicle emissions details from the DVLA but had not done so. The FTS therefore made an error in law in finding that the vehicle did not meet the specified emission standards without certification which met the burden of proof required by law.

On behalf of the respondent, it was submitted that the appeal proceeded on an erroneous interpretation of the 2019 Act. Whether or not the evidence produced to the FTS was a certificate from the Secretary of State in terms of section 7(2), the Tribunal was entitled to rely on it and make the finding in fact that it did. There was no minimum sufficiency requirement for evidence of non-compliance, nor was it a condition of issuing a PCN that a certificate of non-compliance must be obtained.

Error in approach

In his decision, Sheriff Dunipace said of the issues before the FTS at first instance: “At no point did the Legal Member at first instance address the issue of the sufficiency of evidence lodged by the Council which had been raised by the Appellant. In particular the Legal Member has stated that the Low Emissions Scotland website confirmed whether vehicles meet emissions standards and that this was not denied by the Appellant. This appears to be factually incorrect, and the Legal Member may therefore have proceeded on a factually incorrect basis when so asserting.”

He continued: “This is of some significance in relation to the question of proof, given that even in their own submissions that the Council cannot state further than that the source of information for that website is understood to the same as DVLA’s Vehicle Checking Interface. It would appear therefore that the Legal Member at first instance has misdirected themselves in relation to the application of the initial grounds of appeal to the present circumstances, and by not fully considering the matters raised by the Appellant that there has been a fundamental error in their approach to considering the case.”

Asking whether this resulted in an error of law, the sheriff said: “In the present appeal I am satisfied that the Legal Member has made a fundamental error in their approach to the case having regard to the foregoing criteria by not fully considering, or at least misconstruing the full grounds of appeal, which has apparently resulted in the original Legal Member not fully considering the issues raised by the Appellant.”

He concluded: “Accordingly, I am prepared to quash the original decision of the First-tier Tribunal, and the matter should now be remitted to a re-constituted First-tier Tribunal to determine the appeal on its merits, this time fully considering the terms of the Appellant’s appeal.”