The ULEZ Decision

Craig Howell Williams KC and Merrow Golden analyse the High Court’s judgment in the dispute over the expansion of the Ultra Low Emission Zone (ULEZ) in London.

Following a two-day hearing on 4-5 July, Mr Justice Swift has given his judgment on the ULEZ High Court action at R (on the application of Hillingdon LBC et al) v Mayor of London [2023] EWHC 1972 (Admin).

The challenge was brought by five Claimants - four London borough councils (Hillingdon, Bexley, Bromley and Harrow) and Surrey County Council. It concerned the controversial decision taken by the Mayor in November 2022 to expand the ULEZ so as to encompass the whole of outer London. The Mayor and Transport for London were seeking to implement the expansion on 29 August 2023, which will require any non-compliant vehicle to pay a £12.50 daily charge to enter the zone.

The Claimants were granted permission on the papers by Sir Ross Cranston (sitting as a High Court Judge) for two grounds on 12 April 2023. Following an oral renewal hearing, Ellenbogen J granted permission for further grounds on 26 May 2023. 

In summary, the grounds of challenge were (briefly):

1. That the introduction of the ULEZ expansion through a variation order to an existing charging order (as opposed to a new charging order) was ultra vires and failed to comply with the requirements of Schedule 23 of the Greater London Authority Act 1999 and/or frustrated the statutory purpose of that legislation.

2.  That the consultation process was unfair and unlawful regarding the expected reference case compliance rates for outer London, predicted at 91% for private cars by 29 August 2023 without the ULEZ expansion:

  1. ​​​the information provided on this estimated compliance rate was unintelligible;
  2. further, and in any event, key information relating to camera data – necessary to enable consultees to understand the accuracy of the estimated compliance rate and respond intelligently – was not disclosed. 

3.  In relation to the scrappage scheme mitigation: 

  1. The Mayor failed to take into account a material consideration/acted irrationally by failing to consider the potential for affected non-Londoners to be included in the new scrappage scheme mitigation and the inconsistency of the proposed approach with previous decisions. Nor did he give adequate reasons for his decision.
  2. The Mayor had insufficient details on the proposed scrappage scheme rationally to rely on it as mitigation.
  3. The consultation was unfair and unlawful as it failed to provide sufficient details on the proposed scrappage scheme to enable consultees to make intelligent, proper and effective responses. 

The learned Judge handed down judgment on 28 July. He dismissed the appeals, finding as follows (briefly): 

1. The power in Schedule 23 to vary did not exist separately from the power to make a scheme, and no question could arise as to whether the defendant took his decision to confirm the Order in exercise of the correct power. Regardless of whether the change made by the Order was characterised as a variation or the formulation of a fresh scheme, the source of the defendant's power was the same. If the Order had established a new charging scheme, rather than a variation of the present scheme, the obligation under paragraph 19(1) would have arisen. However, although the expansion of the charging area was significant geographically, the changes to be made by the Order did not go beyond what could be properly considered as a variation of the existing charging scheme. For the purposes of the paragraph 19(1) obligation, none of the matters required a conclusion that the Order would introduce a new charging scheme rather than a significant extension of the present scheme.

2. The consultation process was not unlawful. 

  1. Whilst some of the material published required careful reading and some of the information was expressed in technical language or in jargon, the information provided on the estimated compliance rate met the legal standard, being sufficient to permit a sensible and intelligent response.
  2. The information provided in relation to camera data was overall sufficient bearing in mind that the data was only one of the sources relied upon and that the size of camera network in the ULEZ area was readily apparent form information in the draft Data Protection Impact Assessment, which was a key document. The lack of further information did not prevent sensible further representations being made. 

3.  In relation to the scrappage scheme mitigation: 

  1. There was no legal obligation on the Mayor to take the same approach as before and taking the relevant documentation into account the matter had been properly considered. 
  2. The Mayor had sufficient details on the proposed scrappage scheme rationally to rely on it when he made his decision, legal principles permitting a wide margin.
  3. Whilst the relevant question in the survey might be described as superficial, it was not unlawful to pose the question in the way it was put. No detailed information was necessary to respond to the question. 

The case attracted considerable coverage in the press and the ULEZ scheme remains controversial following its implementation date on 29 August. The issues are still alive in the political arena, with the Mayor of London recently expanding the scrappage scheme.

Craig Howell Williams KC and Merrow Golden are barristers at Francis Taylor Building. They represented the Claimants at all stages of the litigation.