In R. (on the application of Hillingdon LBC) v Mayor of London, five councils sought judicial review of the defendant Mayor of London's decision to confirm the Greater London Low Emission Zone Charging (Variation and Transitional Provisions) Order 2022, under the powers set out in the Greater London Authority Act 1999.
The relevant parts of the Order for this case were due to come into force on 29 August 2023. The general effect would be to expand the London Ultra Low Emission Zone (ULEZ) road charging area from its present boundary within the North and South Circular Roads, to an area with a boundary that largely followed the boundary of the Greater London Authority area (expansion area).
The expansion area was significantly larger than the existing ULEZ area. The ULEZ emission standards and road charges for vehicles not meeting the emission standards would apply to the large number of vehicles used in the expansion area. At the same time as confirming the Order, the defendant made a grant payment of £110 million to the interested party, Transport for London (TfL), to meet the costs of a London Vehicle Scrappage Scheme.
The main issue was the extent of the defendant's powers under the Greater London Authority Act 1999. The councils alleged that the defendant had acted unlawfully by approaching the expansion by way of an amendment to the existing scheme, and that such expansion required a new charging scheme to be made.
The defendant's power to make a charging scheme was described in the 1999 Act, which states the powers to make, vary and revoke a charging scheme. The limit of the power to vary a charging scheme was not set discretely from the power to make a scheme. Since the power to vary did not exist separately from the power to make a scheme, 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. The provisions concerned the erection and maintenance of traffic signs in connection with a charging scheme. Neither provision could sensibly be construed as saying anything that marked the boundary of the power to vary a charging scheme as opposed to the extent of the power to make a scheme.
The councils had sought to rely on 1999 Act, concerning prohibitions against a road being the subject of charges made by more than one charging authority without the defendant's consent and the imposition of charges on trunk roads without the Transport Secretary's consent. However, neither provision had any relevance to the decision to confirm the Order.
The councils also contended another provision which required the charging scheme to include the charging authority's plan for the application of its share of the net proceeds of charges made pursuant to the scheme in the first 10 years of its operation, had not been complied with. If the Order had established a new charging scheme, rather than a variation of the present scheme, the 1999 Act obligation would have arisen. However, 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.
The existing two levels of charge would remain the same, there was no change to the classes of vehicle subject to each charge, whilst some updated emissions standards were applied to some of the vehicle classes, which was a predictable feature of any charging scheme intended to improve air quality.
The expansion of the ULEZ charging area was significant geographically, due to the number of vehicles that would be affected by the scheme for the first time, and in revenue terms. However, for the purposes of the 1999 Act obligations, none of those matters required a conclusion that the Order would introduce a new charging scheme rather than a significant extension of the present scheme.
The councils had also argued that the consultation conducted by TfL was unlawful because it failed to provide sufficient, or sufficiently clear, information about its estimate of the proportion of vehicles likely to comply with the ULEZ requirements in the expansion area, and that the decision to make the grant to TfL was unlawful.
"The Councils' challenge fails on all three grounds and is dismissed".
Application for judicial review refused.
