The London boroughs of Bexley, Bromley, Harrow and Hillingdon and Surrey County Council
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
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.
Councillor Colin Smith, Leader of Bromley Council said, “We have been sounding the alarm about Mayor Khan’s attempted tax raid on the Outer ‘London’ suburbs for many months now. The fundamental truth as to his true intention is now increasingly plain for all to see.
“In Bromley, this socially regressive tax directly threatens jobs, the viability and availability of small businesses, and causing significant damage to vital care networks, as well as creating a completely avoidable spike in the cost of living locally, at a time when some households are already struggling to make ends meet.
“To attempt to do all of this under cover of a false Health scare over air quality, when the Mayor’s own research confirms that Bromley has the second cleanest air in London, also, that extending ULEZ to the boundaries of the M25 will make no discernible difference to air quality locally, is frankly unforgivable.
“The upset, pain and anxiety this has caused locally is immense, which is why, even at this late stage, I once again call on the Mayor to withdraw this spiteful proposal.”