Council wins appeal against decision that woman who entered wrong registration into parking app did not have to pay penalty

About this case:

• Citation:
  2024UT04
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff Dunipace

Fife Council argued that the ticket purchased by Alison MacPherson could not be used with her vehicle and per the Fife Council (Waiting and Loading Restrictions and On-Street Parking Places) Consolidation Order 2013 she was required to pay the PCN. The legal member of the First-tier Tribunal had originally concluded that the respondent’s evidence of payment of a ticket was sufficient.

The appeal was heard by Sheriff Colin Dunipace of the Upper Tribunal. No full oral hearing was held, with written submissions presented by the appellant.

Not a relevant consideration

On 27 March 2023, the respondent parked a silver Mercedes with the registration LT58 JZG in a parking bay on Hunter Street, Kirkcaldy. She paid for her parking using the RingGo system operated by the council through an app, but entered the registration LT59 JG, omitting a letter and substituting an 8 for a 9. A parking attendant thereafter issued a Penalty Charge Notice, which was challenged in the First-tier Tribunal.

The appeal was decided without a hearing by a legal member of the Tribunal on the basis of documentary and photographic evidence. They allowed the respondent’s appeal on the basis that she had demonstrated evidence of payment of a parking charge. Evidence that the registration in question belonged to another vehicle, an Audi, was said not to be relevant.

On appeal it was argued by the appellant that the respondent was required to prove that the parking charge was paid for the particular vehicle in question. While it may seem harsh to some that the fact that the registration that was in fact entered was similar to the correct registration, this was not relevant as a matter of law.

A second ground of appeal advanced was that the legal member had erred in taking into account the fact that the respondent had shown she had paid for parking. This was not a relevant consideration for a PCN issued under road traffic legislation, only for a private parking charge arising from a breach of contract.

Discretion not an option

In his decision, Sheriff Dunipace noted: “Whilst the respondent has demonstrated that a parking session was purchased, due to her understandable error, it was not purchased for this particular vehicle. Again it is also understandable that having not realised that an error had been made, given the relatively minor nature of this error that she did not avail herself of one of the methods to rectify this error.”

Analysing the provisions of the Order, he said: “In these circumstances I cannot therefore agree that the Legal Member was entitled, on the basis of the evidence before the Tribunal to make a finding in fact to the effect that ‘the Appellant has paid for her parking on the Ringo system.’ Whilst the respondent has in good faith paid for a parking session, by error she has purchased this session for an entirely separate vehicle and not for the vehicle which she intended to purchase this session for.”

He added: “It is unfortunate that in circumstances where such an obvious error of transcription has clearly occurred in entering digits into a remote payment system that a degree of discretion cannot be applied by the Council where it is clear that there has been no attempt made to abuse the system by seeking to register multiple vehicles for a single purchased parking session. The exercise of discretion however is not an option available to the First-tier Tribunal who must apply the law as it stands.”

Sheriff Dunipace concluded: “Poof of a payment to the Council via their remote payment system does not necessarily mean that this payment was made for the specific purpose of paying for a parking session for that vehicle at that time. To the extent that the Legal Member has concluded that proof of a payment demonstrates that the Respondent has paid for a parking session for that particular vehicle for that specific parking session, I am satisfied that this is erroneous in law and fails to apply the terms of the Order which clearly make reference to the payment being in relation to a specified vehicle.”

The appeal was therefore allowed, and the case remitted to the FTS to deal with the matter as they saw fit.