A coalition of five councils has today (Thursday 16 February) launched a Judicial Review to challenge Transport for London (TfL) and the Mayor of London’s decision to expand the Ultra Low Emission Zone (ULEZ) to outer London boroughs.
The London boroughs of Bexley, Bromley, Harrow and Hillingdon and Surrey County Council have brought legal action following TfL’s announcement in November 2022 that it would push on with proposals to expand the scheme in August 2023 despite strong opposition from across outer London and beyond including concerns over how it is being delivered.
The coalition will challenge the expansion in the High Court on five grounds:
- Failure to comply with relevant statutory requirements
- Unlawful failure to consider expected compliance rates in outer London
- The proposed scrappage scheme was not consulted upon
- Failure to carry out any cost benefit analysis
- Inadequate consultation and/or apparent predetermination arising from the conduct of the consultation
Cllr Paul Osborn, Leader of Harrow Council said:
"Harrow Council remains steadfast in its opposition to Sadiq Khan’s money making ULEZ expansion. This scheme, which the Mayor’s own research suggests makes almost no improvements to air quality, will hit our poorest and most vulnerable residents. This is the wrong solution at the wrong time.
“We have significant concerns about the consultation process. Internal correspondence, which has now been made public, reveals the Mayor’s office intervened in the consultation process, in a manner which affected the results and reduced the percentage opposed to Sadiq Khan’s ULEZ expansion. This included a decision at the end of the consultation to exclude thousands of responses from the results.
“The Mayor chose to ignore the results of his own consultation, so now we will see him in court."
Notes:
The five grounds and a summary of each:
1. Failure to comply with relevant statutory requirements
Schedule 23 to the Greater London Authority Act 1999 governs the making of “charging schemes.” The Mayor decided to extend ULEZ by varying the existing scheme (which applies to inner London). Although Schedule 23 does permit a charging scheme to be varied, the proposed changes are so wide ranging that they amount to a whole new charging scheme which cannot be introduced by way of a variation. In addition, Schedule 23 contains procedural safeguards in the making of a charging scheme which have not been followed by the Mayor.
2. Unlawful failure to consider expected compliance rates in outer London
The Mayor’s failure to provide any meaningful information as to how he expects an instant 91 per cent compliance rate was unfair, and specifically, the Mayor did not respond to Hillingdon’s consultation response that the compliance assumptions “were not fit for purpose.” In addition, the consultation documents were unclear and confusing and prevented consultees from making proper responses.
3. The proposed scrappage scheme was not consulted upon
In making his decision to extend ULEZ the Mayor committed to a scrappage scheme costing £110 million. Details of the scrappage scheme only become available following his decision and were not subject to prior consultation. In particular, the Mayor’s decision to only offer the scrappage scheme to those residing in London was not consulted upon, although this was highlighted in the consultation response from Surrey County Council. Given the importance of the scrappage scheme to the Mayor’s decision, a consultation on the scrappage scheme should have taken place.
4. Failure to carry out any cost benefit analysis
Treasury Guidance recommends a cost benefit analysis where a policy decision requires the use of “significant new” public money. No such analysis was undertaken by the Mayor and no explanation given as to why one was inappropriate. Given that the implementation cost is estimated at £160 million and that the Mayor has introduced a separate £110 million scrappage scheme, and that the expansion is expected to generate a net operating surplus of £200 million in the first full year of operation, his decision clearly involves “significant new” public money.
5. Inadequate consultation and/or apparent predetermination arising from the conduct of the consultation
The consultation exercise contained 15 questions with drop-down answers, only one of which sought to address the question of whether the expansion should go ahead. In addition, following disclosure by the Greater London Authority (GLA) of background consultation information to the GLA Conservatives, it appears that a number of “organised responses” were excluded by TfL particularly those which opposed the expansion. This took place during the consultation and the way in which this happened suggests that the Mayor had predetermination.