Upper Tribunal allows appeal by local authority against decision that parking charge notice was invalid

About this case:

• Citation:
  2022UT17
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff Dunipace

The appeal by Fife Council came after respondent Christian Oliver won his case in the FtT for reduction of the PCN. The council argued that the FtT legal member had failed to apply the correct legislation and erred in finding that PCNs in Scotland were required to use the Standard PCN Codes issued by the British Parking Association.

The appeal was heard by Sheriff Colin Dunipace, a judge of the UT General Regulatory Division.

Simply visiting

On 26 September 2020, the respondent went to a railway car park in Leuchars in order to collect train tickets. He stopped his vehicle for approximately ten minutes within the car park but did not obtain a valid parking ticket. A PCN was issued by a parking attendant, with the council later stating that the respondent was in breach of PCN Code 83 as well as the Road Traffic Act 1991. In subsequent correspondence with the council, the respondent stated that in his opinion he was simply visiting the station and was not “parked” as such.

An appeal to the FtT’s Parking and Bus Lane Tribunal was made on 3 February 2021, in which he also stated that he had not been given the opportunity to pay a reduced fine by the council. Representations were made by the council which noted that spaces within the car park marked as “drop off only” allowed for the collection of tickets without a parking ticket, which had not been used by the respondent, and it was satisfied that the PCN had been correctly served.

The FtT held that, in issuing the PCN as a contravention of code 83, the council had used a non-prescribed wording and thus no penalty charge could arise from it. The council challenged the Tribunal’s finding that there was an absolute requirement to use the standard PCN codes as written and submitted that the FtT had failed to apply the 1991 Act or identify the requirements of a Penalty Charge Notice.

No written submissions were made on behalf of the respondent.

Recommended, not mandatory

In his decision, Sheriff Dunipace noted: “For the purposes of this appeal, I have taken the view that it was reasonable in these circumstances for the Parking Attendant to have concluded that the Respondent may therefore have breached the terms of the [relevant local parking regulations], and as such that he was entitled to issue a Penalty Charge Notice. Whilst I have noted that the Respondent has suggested that no such breach occurred given that his definition of ‘parking’ did not cover the situation which found him attending at the car park to collect pre-booked train tickets, that particular position is not one which I require to consider at this juncture.”

Considering the relevance of the BPA codes, he said: “Whilst it is entirely understandable why the application of [BPA] codes may assist in the administration of parking enforcement, there appears to be no statutory basis for the compulsory adoption of these codes on Penalty Charge Notices in Scotland. It is also of significance that the list of contravention codes as specified relates only to England and Wales given that they were specifically inserted into that jurisdiction by the Traffic Management Act 2004. This 2004 legislation does not apply to Scotland where the Road Traffic Act 1991 remains in force to govern these contraventions.”

He continued: “Given that the use of contravention codes is simply recommended and not mandatory, I am unable to conclude that any failure of a Penalty Charge Notice issued to comply with such a voluntary code would otherwise render it invalid as suggested by the First-tier Tribunal.”

Considering whether the notice complied with the 1991 Act, the sheriff said: “It is apparent that the terms of the Penalty Charge Notice are compliant with the terms of the relevant legislation, namely section 66(3) of the Road Traffic Act 1991. It is also perhaps worthy of note that the heading of the Penalty Charge Notice also specifically makes reference to the Road Traffic Act 1991(as amended). It appears to be clear therefore that the Penalty Charge Notice has been issued in terms of that Act and not any further enactments such as the Traffic Management Act 2004.”

He concluded: “I have concluded from the foregoing that there can be no question that any Penalty Charge Notice issued under the Road Traffic Act 1991 can ever be dependent upon any recommended contravention codes for its validity. In these circumstances I am satisfied that the Penalty Charge Notice was validly issued and accordingly I uphold the appeal on the grounds stated by the Appellants.”

The decision of the FtT legal member was therefore quashed, and the case remitted to the FtT for reconsideration.