LEZ-sons to be learned from failed judicial review of Glasgow’s Low Emission Zone

Background:

On 31 May 2022, Glasgow City Council (the “Council”) brought into force a Low Emission Zone (“LEZ”) under the Transport (Scotland) Act 2019 (the “2019 Act”). Vehicles entering the LEZ are required to meet specified emission standards set out in regulations and penalty charges will be payable in respect of non-compliant vehicles entering the LEZ. The level of the penalty charge is set by the Scottish Ministers and enforcement of the Glasgow LEZ is already live for non-residents, with enforcement for residents to commence on 1 June 2024.

The Petitioner is a car repair business operating from premises located within the LEZ. It ordinarily repairs vehicles on the instructions of insurance companies and stated that around 35% of vehicles that it repairs are non-compliant with the LEZ emission standards. The LEZ will therefore adversely affect the Petitioner’s business as it will impact on the vehicles that can be driven to and from the Petitioner’s premises without penalty.

The Petitioner unsuccessfully sought judicial review of the LEZ on a number of grounds. We summarise and discuss some of the key points raised by the judgment.

Delay

Although the regulations and LEZ that were the subject of the challenge came into effect on 31 May 2021 and 31 May 2022 respectively, the petition for judicial review was not brought until 30 May 2023. However, the court found that it was equitable in the circumstances of this case to extend the 3-month time limit and permitted the petition to proceed.

Notwithstanding this decision, the Council and the Scottish Ministers sought to argue that the petition should be dismissed due to the delay, relying on the common law concept of mora, taciturnity and acquiescence. It is unusual to see such arguments since the introduction of statutory time limits and it was unsuccessful in this case.

The court found that the delay was not unreasonable as it was brought before formal enforcement started, the Petitioner has taken time to try to resolve matters informally and instruct evidence to be produced, and there was a wider public interest. The Petitioner was also not silent, and they had not acquiesced as they entered into extensive correspondence with the Council as soon as they had written directly to the Petitioner.

Alleged failure of the LEZ to make any obvious contribution to meeting air quality objectives

One of the mandatory objectives of an LEZ under the 2019 Act is contributing towards meeting statutory air quality objectives. The Petitioner argued that this objective was not satisfied in respect of the Glasgow LEZ because Glasgow would meet the statutory air quality objectives without the LEZ and provided expert reports to support that claim.

The court helpfully clarified, and the parties agreed, that “meeting” the air quality objectives meant both achieving the relevant limits and thereafter maintaining them on an ongoing basis.

It found that it was lawful, and not irrational, for the Council to conclude that the LEZ would contribute to meeting the air quality standards. It had followed the modelling approach set out in the statutory guidance and also supplemented that with measurements from monitoring stations. The court also found that it was material that there were legal obligations to meet certain air quality objectives by 2005 yet the information before the Council at the time of the decision indicated that they were still not being met many years later.

On the Petitioner’s expert reports, the court emphasised that its role was to consider the legality of decisions and not their merits. In doing so, they had to consider whether the Council had a proper basis for its conclusion at the time of its decision. As the principal expert report post-dated the Council’s decision by a year, it was not before the Council and could not properly support an argument that the Council’s conclusion was wrong. The court also questioned the utility of the expert report for its consideration because it did not follow the methodology specified in the statutory guidance.

Alleged unjustified interference with rights under the European Convention on Human Rights.

The Petitioner argued that the LEZ was an unjustifiable interference with its right to peaceful enjoyment of its possessions in terms of Article 1 of Protocol 1 (“A1P1”) on the European Convention on Human Rights (“ECHR”), and in particular that the levels of the penalty charges are incompatible with A1P1.

The Petitioner had taken steps to renew their courtesy vehicle fleet, ensure their recovery vehicles were LEZ compliant and offered interest free loans to staff to assist with purchasing compliant vehicles. They estimated that there was £37,000 of approved work to be done on non-compliant vehicles, around £70,000 for jobs on non-compliant vehicles awaiting authorisation from insurance companies and between £1.5m and £2m of lost business due to the LEZ.

While the court was satisfied that A1P1 was engaged, there was only a limited interference with the Petitioner’s rights. All of the Petitioner’s vehicles, and those of its staff, are LEZ compliant so will not be subject to penalty charges and, additionally, the millions of pounds of future income that may be lost is not protected by A1P1. The interference was therefore restricted to the costs of ensuring vehicles would be LEZ compliant and the loss of existing approved work, as well as associated goodwill.

All of the objectives of the LEZ (i.e. meeting air quality standards, reducing climate change emissions promoting public and sustainable transport options) were found to be legitimate aims in terms of the ECHR. The principal question was therefore whether the LEZ was a proportionate measure, balancing the benefits of the LEZ against the limited interference.

The Petitioner’s argument that the LEZ could have covered a smaller area or had lower penalty changes was not accepted by the court as they found that such alternative proposals would not have achieved the legitimate aim. It was found that the LEZ represented a fair balance due to the strong collective interests in complying with legal obligations in relation to air quality and protecting human health and the environment. Again, the court was influenced by fact that there was still non-compliance with air quality objectives which should have been met by 2005.

In terms of the challenge to the level of penalty charge, the court concluded that it did not fall to be determined by them in this case. This was due to the Petitioner not being subject to any penalty charge as their vehicles were LEZ compliant and due to the lack of future risk it was difficult to carry out a balancing exercise between the interference from the penalty and the legitimate aim, as required by A1P1.

Interestingly, the court noted that there appeared to be a lack of reasoning for the level of penalty charges set by the Scottish Ministers and there was a lack of information available to the court to explain why lower penalty charges would not also be sufficient to dissuade people from entering the LEZ in non-compliant vehicles. They particularly highlighted that similar schemes elsewhere pursuing similar objectives had markedly different financial provisions, and this may suggest a need to consider whether less intrusive financial provision would still meet the legitimate aim.

Alleged unlawful consultation process

The final ground of challenge was that the consultation process was unlawful because of a failure to have regard to the position of businesses such as the Petitioner’s and that there was a predetermination of the outcome.

On the first point, the court noted that the Petitioner had numerous opportunities to submit representations during the consultation process but failed to do so.  It was further noted that businesses interests were taken into account and the Petitioner’s individual position was not so obviously material that it had to be directly and individually considered.  On predetermination, the court said it was not pointed towards any clear evidence and was asked to draw inferences from minimal changes to the LEZ and the Council proceeding in the face of negative views and limited evidence of air quality exceedances.

The court found that this was not sufficient to demonstrate predetermination, noting that there were changes made following informal and formal consultation and explanations were provided for not making other changes.

Comments

LEZs are likely to be here to stay with transport and wider Government policies focused on net zero and wider environmental objectives. LEZs under the 2019 Act have also been introduced in Aberdeen, Dundee and Edinburgh, with enforcement under those schemes due to commence in 2024.

The unsuccessful challenge will be welcomed by the Scottish Ministers and the various authorities who have introduced, or are considering, LEZs. However, there are a number of points emerging from the judgment that will require further consideration.

While the court was satisfied that the Council had the material before it to conclude that the LEZ was an appropriate measure to contribute to meeting air quality objectives and standards, it was significant that the Petitioner’s report post-dated the decision and did not follow the methodology specified in statutory guidance.

If authorities are looking to introduce new LEZs, extend existing LEZs or carry out a review of an LEZ under the 2019 Act, they may need to be prepared to consider and respond to expert evidence about the scheme’s contribution to meeting air quality objectives provided it is submitted timeously and follows the appropriate methodology.

Also, while not something the court had to address in this case due to the penalty charges not applying to the Petitioner, the court did suggest that more might need to be done to justify the levels of penalty charge in the event of someone directly impacted by a penalty charge seeking to challenge the level of penalty. The court noted that there was a lack of information before them to justify why the levels were the minimum required to achieve the objective and highlighted that similar schemes elsewhere had very different financial provisions. The Scottish Ministers may therefore undertake some further analysis with a view to providing a robust justification for the levels of penalty charge.