Appeal by Glasgow City Council against a decision of the Upper Tribunal (Court of Session)

Factual and Procedural Background

This appeal concerns the enforceability of a penalty charge notice (PCN) issued by a local authority under the Glasgow Low Emission Zone (LEZ) scheme. The LEZ was introduced pursuant to the Transport (Scotland) Act 2019 and associated regulations to reduce air pollution by restricting vehicles that do not meet specified emission standards. The appellant local authority issued a PCN to a motorist (the Appellee) for contravention of the LEZ. The PCN was sent by ordinary post rather than by the prescribed registered or recorded delivery post. The motorist received the notice, made representations which were rejected, and appealed to the First-tier Tribunal (FtT). The FtT held that the PCN was invalid due to defective service. The Upper Tribunal (UT) upheld this decision. The appellant now appeals to the Court of Session, seeking to overturn the UT's ruling.

Legal Issues Presented

1. Whether a penalty charge notice issued under the Glasgow Low Emission Zone scheme is enforceable if it was not served by registered or recorded delivery post as prescribed by statute.
2. Whether failure to comply with the statutory procedural requirement for service results in automatic unenforceability of the PCN.
3. Whether substantial compliance or actual receipt of the PCN by the recipient can cure defective service under the statutory scheme.

Arguments of the Parties

Appellant's Arguments

• The appellant accepted that the notice was not served in the prescribed manner but argued that the PCN was effective and enforceable.
• The appellant acknowledged the importance of receipt of the PCN but contended that failure to serve by registered or recorded delivery should not result in unenforceability where there was no prejudice to the recipient.
• It was submitted that Parliament could not have intended for liability to be defeated on a purely technical procedural point when the recipient had received the notice and exercised rights under the scheme.
• The appellant relied on the principle of substantial compliance and argued that the statutory scheme should be interpreted in a way that balances public interest in enforcement with private interests of fair notice.
• The appellant contended that the UT erred in holding that prejudice to the recipient was irrelevant.

Amicus Curiae's Arguments

• The amicus curiae submitted a structured approach to interpreting consequences of non-compliance: first, determining failure to comply; second, whether Parliament intended automatic unenforceability; and third, if not, considering substantial compliance.
• It was argued that the statutory scheme demonstrates that service of the PCN by prescribed methods is central and critical to the enforcement regime, as it creates the liability to pay the penalty.
• The amicus emphasized that service must be verifiable to ensure the recipient is properly informed of contravention, penalties, rights to representation, and appeal deadlines.
• The amicus contended that this is a "bright line" case where failure to comply with the service requirement should render the PCN unenforceable.
• Substantial compliance was rejected because ordinary post does not provide proof of delivery or recipient identity, which are essential under the scheme.
• The amicus argued that strict compliance is proportionate given the power imbalance between local authorities and motorists and the financial penalty involved.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Soneji [2006] 1 AC 340	Abandonment of rigid mandatory/directory classification; focus on statutory purpose and consequences of non-compliance.	Guided the court’s purposive interpretation to determine if Parliament intended automatic invalidity for procedural breaches.
Osman v Natt [2005] 1 WLR 1536	Assessment of legislative intention for consequences of non-compliance with procedural requirements conferring property rights.	Supported the need for detailed statutory analysis and consideration of whether non-compliance affected substantive rights.
A1 Properties (Sunderland) Ltd v Tudor Studios RTM Co Ltd [2024] 3 WLR 601	Application of Soneji approach; nuanced analysis balancing substantive and procedural purposes; recognition of "bright line" rules.	Provided framework for deciding whether failure to comply with service requirements invalidates statutory process.
Liverpool Borough Bank v Turner (1860) 30 LJ Ch 379	Distinction between mandatory and directory statutory requirements.	Referenced by FtT in preliminary analysis of service requirement.
Howard v Bodington (1877) 2 PD 203	Mandatory vs directory rules distinction.	Referenced by FtT in assessing the nature of the service requirement.
London and Clydesdale Estates Ltd v Aberdeen District Council 1980 SC (HL) 1	Critique of rigid mandatory/directory classification; emphasis on consequences of non-compliance.	Influenced the court’s approach to statutory construction and consequences of defective service.
Burman v Mount Cook Land Ltd [2002] Ch 256	Importance of critical information in statutory notices for validity.	Used to illustrate cases where invalidity was upheld due to missing critical information.

Court's Reasoning and Analysis

The court began by acknowledging the admitted failure to serve the PCN by the prescribed registered or recorded delivery post as required by section 26 of the Interpretation and Legislative Reform (Scotland) Act 2010. It reviewed the statutory framework established by the Transport (Scotland) Act 2019 and the 2021 Regulations, which govern LEZ enforcement and specify the contents and service of PCNs.

The court considered the leading authority of R v Soneji, which rejected a rigid mandatory/directory dichotomy and advocated a purposive, flexible approach focusing on the statutory scheme and consequences of non-compliance. The court also reviewed Osman v Natt and A1 Properties, which emphasize detailed statutory analysis and balancing substantive and procedural purposes, including whether non-compliance causes prejudice or injustice.

Applying these principles, the court examined whether the service requirement was a "bright line" rule mandating automatic invalidity for non-compliance. The court found that sections 6(2) and 7(4) of the 2019 Act and regulation 6(1) of the 2021 Regulations do not explicitly link liability to the method of service. The PCN’s purpose is to inform the recipient of the contravention, penalty, and rights, but the legislation does not indicate that failure to use the prescribed method necessarily invalidates the notice.

Critically, the motorist undisputedly received the PCN, made timely representations, and exercised the right of appeal in accordance with the statutory scheme. Thus, the procedural purpose of service—to inform and enable challenge—was fulfilled despite the defective method of delivery. The court held that it would be unlikely Parliament intended that such a technical breach, causing no prejudice, would nullify the PCN and undermine the substantive legislative aim of reducing pollution through enforcement.

Accordingly, the court rejected the argument that defective service automatically rendered the PCN unenforceable. It concluded that the statutory scheme requires a nuanced analysis balancing the purpose of the procedural rule and the facts of the case. Here, the motorist's interests were not adversely affected, and the substantive outcome of the scheme was achieved.

Holding and Implications

The court ALLOWED THE APPEAL, set aside the decisions of the First-tier and Upper Tribunals, and remitted the case to a freshly constituted First-tier Tribunal to consider the motorist's appeal on its merits.

The decision is expressly based on the particular facts where the motorist accepted receipt of the PCN and challenged it timeously. The court did not establish a general rule for other cases with different facts. No new precedent was established beyond the application of established principles of statutory interpretation and procedural fairness in this context. The ruling underscores the importance of balancing procedural compliance with substantive justice and public interest in enforcement.