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This decision of the Scottish Court of Session (equivalent to the Court of Appeal in England) analyses breaches of mandatory regulations and considers whether such a breach is fatal to lawful enforcement of the civil penalty (in this case, issued for Glasgow Low Emission Zone).

The decision – binding in Scotland and highly persuasive when considering cases relating to England and Wales – underlines that a failure to follow regulations or a procedural irregularity that causes no prejudice is not fatal to the enforcement of the penalty charge notice.

This case clarifies that a clean air zone charge applies from midnight to midnight. A vehicle remaining in a zone after 11.59pm becomes liable for the following day’s charge, even if the vehicle only remains in the zone for a limited period after midnight, and only due to heavy traffic. The circumstances described in this and such a case do not provide a ground of appeal under the statutory fixed penalty scheme. They amount to mitigation that the adjudicator does not have the power to consider.

This case clarifies that the relevant traffic regulations apply to the motorist, even if they cannot read or understand English. It is incumbent on the motorist to observe and comply with lawfully marked restrictions. A failure to understand them, or a lack of knowledge, cannot amount to a ground of appeal.

This case clarifies that there is no concept of a ‘near miss’ in public law. That the motorist entered a bus lane shortly before time restrictions were lifted is mitigation, not a ground of appeal.

This case clarifies the issue of ‘ostensible authority’, concerning situations where motorists may seek to establish that a third party impacted their case. In this specific case, the motorist claimed that a third party was acting on behalf of the council (by directing traffic).

The adjudicator’s decision makes clear that a motorist must not only prove that specific permission had been given (in this case permission to use a bus lane), but also that the principal (i.e. the council) had in some way indicated that the third party had such authority to direct the motorist as such.

Without these elements, a legitimate expectation that a penalty charge notice will not be issued/enforced cannot arise.

Paragraph 13 of the decision references the issue of ‘ostensible authority’, specifically.

Further, de minimis or ‘near misses’ cannot apply under the regulatory scheme – compliance is binary (as covered in Paragraph 8 of the decision).