Upper Tribunal rules parking tribunal was wrong not to consider evidence of degraded bay markings in penalty appeal

About this case:

• Citation:
  2023UT27
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff Dunipace

It was argued by appellant John Hazard that the First-tier Tribunal ought to have considered additional relevant evidence submitted by him concerning the state of markings in the area. This evidence, he argued, demonstrated that the lines painted by the Council did not conform to statutory regulations.

The appeal was heard by Sheriff Colin Dunipace of the Upper Tribunal. Written representations were made by the appellant, while no representations were made by the respondent.

Solid, unbroken and continuous

On 18 March 2022, the appellant was issued with a Penalty Charge Notice on the grounds that he had parked in a residents or shared use parking zone without displaying a permit or ticket. The matter was set down for a telephone hearing on 2 February 2023, which the appellant did not attend. The appeal thereafter proceeded on the basis of the respective parties’ written representations and lodged supporting documentation.

As part of his written representations, the appellant lodged photographs of the area in which he parked that he alleged demonstrated the bay markings had degraded. The First-tier Tribunal did not consider these representations as it considered that they were irrelevant on the basis that the contravention was based on the lack of a valid ticket or permit.

In his written submissions to the Upper Tribunal, the appellant highlighted that the Traffic Signs Regulations and General Directions 2002 required that all lines marking out parking bays must be “solid, unbroken and continuous”. His evidence would have demonstrated that the state of the road markings was very poor, and it was arguable that the legal member would have reached a different decision if they had considered it.

The appellant further argued that the state of the markings meant he could not have known he was parking in a restricted bat. While there was no legal requirement for road markings to be in pristine condition, they did require to be in sufficiently good condition to give motorists adequate notice of the applicable parking restriction.

Relevant to the question

In his decision, Sheriff Dunipace observed: “A question has arisen as to whether the signage was adequate to comply with the appropriate Regulations. This would in normal circumstances be a question of fact and a matter for determination by the original decision maker. In the present instance however it would appear that the original Legal Member has deliberately not taken account of the photographic evidence which has been provided on the basis that it was not considered to be relevant to the circumstances of the specific contravention alleged.”

On whether this evidence was relevant, he said: “The question of the signage is relevant when considering whether the Appellant had been provided with notice that there were parking restrictions in force at all. In these circumstances the matter of signage was of some relevance to the question of whether there was adequate notice provided to the Appellant of the existence of the restrictions in the first place.”

He continued: “In these circumstances whilst the position of the initial Legal member was entirely understandable, the photographic evidence was of relevance and as such should have been considered at the time of the original decision. I am satisfied therefore that a point of law has been established in this matter.”

The sheriff concluded: “At this stage I express no opinion as to whether the markings at the locus were compliant with the relevant Regulations, as this is a matter for determination by the original fact finder. It is for the Legal Member dealing with this matter to consider the factual position in relation to the road markings at the locus, and to specifically address the question of whether they were compliant with the appropriate Regulations.”

Sheriff Dunipace therefore quashed the original decision of the First-tier Tribunal and remitted the matter back to it with a direction to consider the photographic evidence lodged by the appellant.