Transport for London’s claim that more than nine in 10 car drivers would be unaffected by the Ulez expansion could not be substantiated and was based on “impenetrable” data, the High Court was told on Tuesday.
It also relied on data from only 106 of its CCTV cameras in outer London to calculate the “compliance” figure - ignoring the evidence gathered from almost 1,500 of its cameras in central and inner London, the court was told.
This sparked concern from councils opposed to the Ulez expansion about whether TfL’s calculations were “robust” and prevented them from accurately calculating the number of drivers likely to be adversely impacted by the Ulez expansion.
Craig Howell Williams KC, representing five Tory councils seeking to block London mayor Sadiq Khan’s plans, said the “critical matter at issue” was TfL’s claim that 91 per cent of car drivers would not be liable to pay the £12.50 a day levy.
“It’s a gaping hole here,” he said. “It’s absolutely critical to understand the reliability of that figure, and what the data base is for it.
“It all goes to show that the consultation documents were not as clear as they should have been.”
He said there were 1,156 cameras in the Ulez “middle ring” - but only the 106 in outer London, which are used to enforce the LEZ lorry scheme that dates back to 2007, were used.
“The area of expansion is massive,” Mr Howell Williams said. “We now see there were caveats [with the camera data]. A hundred and six cameras is exactly the sort of point consultees would have wanted to comment on
“We would have said that is not likely to be reliable, bearing in mind the size of the area to be covered.”
The London boroughs of Harrow, Hillingdon, Bexley and Bromley and Surrey County Council are seeking a legal “roadblock” to the mayor’s August 29 expansion of the ultra-low emission zone to the Greater London boundary.
Mr Howell Williams told the court that the compliance rate was critical as it showed how many people would be adversely affected by the scheme, which Mr Khan says will help clean up London’s toxic air.
Mr Howell Williams said TfL’s consultation document failed to make clear what the compliance rate would be if the Ulez expansion was not on the agenda.
TfL is believed to have calculated the 91 per cent compliance rate for outer London by cross-referencing data obtained by its number-plate reading cameras with car ownership data from DVLA and research into the typical length of journeys.
But the councils claim the camera data may not have given a “representative picture” of the number of non-compliant cars in outer London – possibly because TfL only used information from a small number of cameras.
Mr Howell Williams said: “There is doubt because it’s not clear where this data comes from. We understand it’s a ‘seen’ figure – as in [cars] seen by the camera network.
“The critical point here, my Lord, is the information is not complete and isn’t informative enough so that the consultees can make an intelligent response.
“When one asks ‘What is it based on?’ it’s not clear. No data source is given for that figure.”
He said people trying to respond to the consultation should not be forced to “turn detective” to try to understand the Ulez’s likely impacts.
Addressing the court after the Tuesday lunch break, he said: “There was a real difficulty in being able to respond properly and intelligently to the [consultation] documents.”
The councils have accused the Mayor of an “unfair and unlawful consultation”.
Prior to the case, TfL was unable to say definitively how many motorists might have to pay the Ulez.
About two million cars are believed to be driven in Greater London very weekday, with TfL saying 92 per cent will be Ulez compliant by next month – just above the 91 per cent figure, which relates to outer London.
Mr Howell Williams told the court: “The consultation must be fair and not be confused, not be misleading. It has to be complete. It must disclose relevant information.
“In sum, what must happen is there must be no detective exercise to be carried out, or paper-chase, or puzzle to solve, and be sufficiently clear so that an intelligent response can be made.”
Ulez expansion judicial review: the five Tory council leaders at the High Court pic.twitter.com/6iM1dhtOqR
— Ross Lydall (@RossLydall) July 4, 2023
The judge, Mr Justice Swift, said the test was whether the information provided in the consultation could be understood by the common man or woman.
“Does it pass muster?” he asked. “It’s not set out in a way that tends to be obvious to a simple reader.”
Mr Justice Swift said the consultation made clear that the compliance rate would be 91 per cent at the date proposed by the mayor for the Ulez expansion to start.
“What more do you need to enable you to respond sensibly to this part of the ‘cost-benefit analysis’?” he asked.
Mr Khan was not in court. The case is being defended on his behalf by lawyers acting for Transport for London.
The councils claim that Mr Khan acted beyond his powers – ultra vires in legal terms - in how he set out the expansion plans. Their case has three grounds, including that he failed to allow drivers living on the outskirts of London to access his £110m scrappage scheme.
The councils say Mr Khan should not have sought to establish the Ulez legally by varying the existing Ulez order but should have done so by drafting a brand new legal entity from scratch.
They argue that the scale of the UIez expansion is “considerable” – being significantly larger than the existing zone and expecting to generate a net £200m a year in revenue from levies and fines.
Documents presented to the court by the councils claimed that the Ulez expansion decision was “unlawful” because it had not been drafted via a new charging scheme order.
“It is obvious that Parliament never intended this variation power to be used to introduce a whole new charging scheme,” the claimant’s argument claimed.
Opening the case for the five councils, Mr Howell Williams warned that a “cold towel” would be needed to help understand the intricacies of the case.
He said the original LEZ (low emission zone), which was introduced by Ken Livingstone in 2007 to target polluting lorries but not cars, had become “less perceptible” because of the many variations of the legal orders.
He said: “It’s been one variation upon another variation upon another variation. The original order is becoming obscured.”
The hearing is expected to last two days, with judgement likely to be handed down in the coming weeks.
Victory for Mr Khan will give the green light to the expansion going ahead at the end of next month.
But defeat could mean a delay of several weeks or possibly months, depending on the extent that the court finds flaws in the way Mr Khan and Transport for London went about preparing for the expansion.
The court cannot indefinitely prevent Mr Khan from expanding the Ulez but if he is forced to re-consult Londoners – which take many months to organise - that could turn the mayoral elections next May into a de facto referendum on the Ulez.
Ian Edwards, the Tory leader of Hillingdon council, told the Standard outside the court: “We have come together to represent our residents, who are outraged at Mayor Khan’s Ulez – a tax on living in outer London.”
He said public transport connections were poorer in the suburbs, meaning residents were more dependent on their cars.
“Our residents are telling us that low-income and elderly households are going to be most keenly impacted by this tax, as will local businesses,” Mr Edwards said.
“They are equally as concerned about air quality as Mayor Khan is but they know this isn’t about air quality. The Cleaner Cities Campaign have just published 13 air quality stations across London that didn’t meet the standards nationally. None of them were in any of our boroughs. The majority were in inner London.
“Mayor Khan needs to focus on tackling the problem and not focus on the wallets of our residents and local businesses. This is a taxation on life in outer London.”
The hearing was adjourned at 4.30pm on Tuesday. It will resume at 10am on Wednesday.
