Legal challenge to Glasgow’s Low Emission Zone refused by Lady Poole

About this case:

• Citation:
  [2023] CSOH 74
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Poole

John Paton & Sons Ltd argued that . Glasgow City Council’s position was that the challenge had been brought too late, and that in any event there was no merit in any ground of challenge. The respondent’s position was supported by the Scottish Ministers as an interested party.

The petition was considered by Lady Poole. Lord Davidson of Glen Clova KC appeared for the petitioner, R Crawford KC for the respondent, and G Moynihan KC for the Scottish Ministers.

Obvious contribution

On 31 May 2022, Glasgow City Council brought a Low Emission Zone scheme into force in the centre of Glasgow, with the enforcement of penalties to begin in June 2023 for non-residents of Glasgow and June 2024 for residents. The petitioner operated a vehicle repair business from within the LEZ, which it claimed would cause a negative effect on its business because not every vehicle it repaired was capable of driving into the LEZ without penalty.

It was the petitioner’s case that the LEZ was unlawful and irrational because it did not make an obvious contribution to meeting air quality objectives and standards as outlined by the scheme objectives contained in section 14 of the Transport (Scotland) Act 2019. In support of this claim the petitioner produced expert reports and an associated affidavit stating that emissions would reduce sufficiently without the scheme.

The petitioner further argued that the scheme was an unjustified interference with its ECHR rights to peaceful enjoyment of its possessions. While the business could take, and had taken, action to make its own fleet of vehicles LEZ compliant, it could do little about vehicles coming in for repair aside from adding an additional charge to repair bills to absorb any applicable charge.

Both GCC and the Scottish Ministers relied on the plea of mora, taciturnity and acquiescence to argue that the challenges to the LEZ scheme, and the provisions of the 2021 Regulations setting penalty levels used in the scheme, were barred. The respondent submitted that Article 1 ECHR was not engaged, and any interference with the petitioner’s ECHR rights was limited.

Fair balance of interests

In her decision, Lady Poole said of the respondent’s mora plea: “It is true that there was delay by the petitioner in bringing the application, both after the coming into force of the 2021 Regulations challenged in this case on 31 May 2021, and after the LEZ scheme was brought into force on 31 May 2022. The petition was not brought until 30 May 2023. But in all the circumstances that delay was not unreasonable.”

She explained further: “The considerations listed in the court’s note of 27 July 2023 when considering equitable extension, of continuing effect, the bringing of the petition before enforcement started, the time taken by the petitioner trying to resolve matters informally and in instructing evidence, and the wider public interest, point to the delay being reasonable.”

Turning to the evidence presented by the petitioner, Lady Poole said: “The expert evidence adduced by the petitioner cannot properly underpin an argument that GCC was wrong to decide the LEZ scheme would contribute to meeting air quality objectives. This is an application for judicial review, in which the court adjudicates on the legality of decisions taken by public authorities, not their merits.”

On the engagement of the ECHR, she began: “In principle, money the business spent on ensuring its recovery, staff and courtesy vehicles were compliant, that would not have been incurred in any event without the LEZ, qualifies as a possession that is interfered with by the LEZ. Further, business will be lost repairing non-compliant and non-exempt vehicles. It is not all lost business that is protected by A1P1. ‘Possessions’ is an autonomous Convention concept. Existing enforceable contracts, and goodwill derived from those contracts and earlier trading, are possessions within A1P1.”

However, she continued: “On the other side of the balance, there were strong collective interests in complying with legal obligations as to air quality, and protecting human health and the environment of the many people who live, work and visit in Glasgow City Centre. The legal requirement was that the NO₂ air quality objective should have been met from 2005, but the annual legal limit for NO₂, including in the Glasgow urban area, has been systematically and persistently exceeded. Modelling and monitoring data suggests that legal requirement is still not met everywhere in Glasgow City Centre in 2023. It was inevitable that some interests would be adversely affected by introduction of the LEZ scheme.”

Lady Poole concluded: “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 petition and accompanying motion for reduction were therefore refused.