In John Paton and Sons Ltd v Glasgow City Council (GCC), the operator of a vehicle repair business petitioned challenging the lawfulness of the local transport authority's central Glasgow low emission zone (LEZ) scheme, and the provisions of the Low Emission Zones (Emission Standards, Exemptions and Enforcement) (Scotland) Regulations SSI 2021/177, fixing the scheme's penalty levels.
The Scottish Ministers entered the proceedings as an interested party. The petitioner's business operated from within the LEZ and argued that the LEZ scheme adversely affected its business, because of its effect on the vehicles which could be driven in and out of its premises for repair without penalty.
The respondent and the interested party argued that:
The petitioner's grounds of challenge were that the:
In regards to the time delay, the time limits were primarily regulated by the Court of Session Act 1988. An interlocutor of 27 July 2023 found that the present petition was brought timeously, after the time limits of the 1988 Act were considered. The mora plea subsequently failed at the first hurdle. The mora plea also ran into problems on the issue of taciturnity. Once the first respondent wrote directly to the petitioner on 13 January 2023 about the LEZ scheme, extensive correspondence with it was immediately entered into. When that was not fruitful, an action was brought. It could not properly be inferred that the petitioner was silent, nor that is acquiesced in the matters challenged.
For illegality and irrationality, expert evidence was adduced by the petitioner in the form of a report dated 19 May 2023, and an updated report dated 16 October, could not properly underpin an argument that the respondent was wrong to decide the LEZ scheme would contribute to meeting air quality objectives, First, the report postdated the respondent's conclusion by nearly a year. Second, the petitioner's expert opinion did not use the methodology set out in statutory guidance, to which the respondent had to have regard, and follow, unless there was good reason not to.
"It was lawful, and not irrational, for GCC to conclude the low emission zone properly had as an objective that it would contribute to meeting the air quality standards, as required by section 14(4)(a) of the 2019 Act. The petitioner's first ground of challenge is not well founded".
Parties agreed that "contribute towards meeting air quality objectives" in the 2019 Act encompassed measures bringing excess levels of pollutants down to statutory limit, and measures contributing to maintaining those levels. Therefore the LEZ scheme could have an objective of "contributing towards meeting air quality objectives" both in a situation where it aimed to reduce excess levels to statutory limits, but also where it sought to ensure limits continued to be met thereafter. Under Assimilated Reference Directive 2008/50, on ambient air quality and cleaner air, "meeting" in the 2019 Act was to be interpreted as attaining and maintaining are quality objectives.
In considering the human rights argument, on the basis that the penalties were set at a level that dissuaded non-compliant and non-exempt vehicles from entering the LEZ and coming to the petitioner's premises, there was a limited interference with the petitioner's Protocol 1 art. 1 rights. The LEZ scheme was in accordance with conditions provided by law, because it was made under the 2019 Act and associated regulations. The scheme pursued a legitimate aim, and its three objectives were to:
Those were all legitimate aims, and the scheme was rationally connected to the objectives. The legitimate aims could not have been achieved by a less intrusive measure. Measures already taken by the respondent had not been sufficient to achieve the air quality objectives. The petitioner's argument that the LEZ scheme adopted could have covered a smaller area, or had charges set at lower levels that did not effectively stop non-compliant vehicles driving in the LEZ, would not have achieved the legitimate air quality aim.
The respondent could not be faulted for deciding there were no less intrusive means to meet the objectives, in particular the air quality objective, than the LEZ scheme with the boundaries adopted, and penalties at levels designed to stop non-compliant and non-exempt cars coming into the city centre. The petitioner's de facto loss of existing contracts had not been ameliorated by being granted an exemption or given compensation. The petitioner's possessions protected by Protocol 1 art. 1 and interfered by the LEZ scheme had significant value, but in the thousands not millions of pounds. On the other hand, there were strong collective interests in complying with legal obligations as to air quality and protecting human health and the environment. It was inevitable that some interests would be adversely affected by the introduction of the LEZ scheme.
"Having regard to all of these interests, and given the strength of the collective interests concerned, the LEZ scheme represents a fair balance of interests. The interference with the petitioner's possessions is justified. The petitioner's second ground of challenge fails, insofar as it is directed at GCC's LEZ scheme".
The petitioner had opportunities to submit representations during the consultation process on the LEZ scheme, but did not do so. The governing legislation did not say that the respondent had to expressly take into account businesses reliant on vehicles not footfall. Nor was the petitioner's individual position so obviously material that as a matter of law it had to be directly and individually considered. The respondent's consultation covered business interests and those were taken into account, as part of an exercise necessitating the balancing of many different considerations.
The decision to bring into force the LEZ scheme was not unlawful for having failed to take into account a material consideration. The court was not pointed towards any clear evidence supporting the challenge on the basis of predetermination but was invited to draw inferences of predetermination from certain matters, having regard thereto, the inference could not properly be drawn that there was an absence of conscientious and open minded consideration of relevant matters by the respondent. The LEZ scheme was not unlawful as a result of predetermination and improper consultation.
"The petitioner's grounds of challenge to the Glasgow LEZ scheme are not well founded".
The petition was refused.
