Upper Tribunal rejects appeal by council seeking to uphold parking ticket given to car on private church land

About this case:

• Citation:
  2023UT24
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff Dunipace

The City of Edinburgh Council sought to establish that the legal member of the FtT had erred in his interpretation of the Roads (Scotland) Act 1984. The respondent, Chris Hogan, was an employee of the landowner, Barclay Viewforth Church, and argued that the interpretation contended for by the Council would produce absurd results.

The appeal was heard by Sheriff Colin Dunipace of the Upper Tribunal. Written submissions were made by both parties.

Contrary to common sense

On 15 June 2021, the respondent was issued with a penalty charge notice in relation to a parking contravention on the grounds that he had parked in a restricted street during prescribed hours. He appealed the decision to the First-tier Tribunal’s General Regulatory Chamber, arguing that the alleged contravention did not occur.

Access to BVC’s land was taken by crossing pavement and then driving onto the paved area owned by the church. Before the FtT the appellant disputed the Council’s representations that a piece of paved land accessed by travelling over a verge or pavement fell within the statutory definition of a “road”, also noting that cars had been parked at that location for over 30 years and any penalty notices previously issued had been withdrawn.

The legal member of the Tribunal found the respondent’s evidence to be credible and accepted that the definition of a road per section 151 of the Roads (Scotland) Act 1984 was not met by the location the vehicle was parked. They also considered that the location did not constitute a public right of passage, the private nature of the land being undisputed by the appellant, and that Mr Hogan had a legitimate expectation that enforcement steps would not be able to be taken.

The appellant’s sole ground of appeal was that the legal member had failed to adhere to and apply the full extent of the provisions of the 1984 Act. In response, the respondent’s representative submitted that the appellant’s interpretation of the Act would mean that a ticket could be given to a car parked in a privately owned garden or forecourt. This interpretation would be contrary to common sense and the natural meaning of the Act.

Reasonable expectation

In his decision, Sheriff Dunipace observed: “In considering [section 151] it is important to note that the terms of the legislation make reference to a ‘public right of passage’ and not a ‘public right of way,’ given that the former involves ‘less exacting considerations.”

He continued: “It is clear that a public right of passage need not run from one public place to another, and it may provide access to and egress from a private property. In the present case it is clear from the evidence lodged that the area in question does constitute a public right of passage to a church. I do not understand it to be disputed that the church is an area to which the public have access. The ownership of the land is irrelevant, and the Council are entitled to impose parking restrictions on private land.”

However, on whether the respondent had an expectation that he would not be charged, the sheriff said: “I have noted that the Legal Member accepted the evidence of the Respondent to the effect that any previous PCNs issued at that locus had been cancelled by the Council. Such action may give rise to a reasonable expectation on the part of the Respondent to believe that no further enforcement action would be taken in relation to parking at that locus.”

He concluded: “In the present case the Legal Member has found as a matter of fact that the Council did withdraw previous PCNs issued, a decision which the Legal Member was entitled to reach on the basis of the information before that Tribunal. It is not for this Tribunal to seek to re‐visit that decision. In any event I note that the Council do not take issue with that decision and that they have lodged no further representations in that regards.”

Accordingly, the sheriff refused the appeal and upheld the original decision of the First-tier Tribunal.