Sadiq Khan “courted disaster” by trying to force through the Ulez expansion in just nine months, the High Court was told on Wednesday.
Concluding the case brought by five Tory councils against the Mayor and Transport for London, Craig Howell Williams KC said Mr Khan’s proposed expansion of the ultra-low emission zone to the Greater London boundary was being done on an “extremely tight and unprecedented” timetable.
He told the court: “The mayor is in effect courting disaster... there was an inherent risk of legal challenge.”
The two-day judicial review hearing concluded on Wednesday afternoon. The judge, Mr Justice Swift, said he would try to hand down his judgement by July 31.
The Ulez is due to expand on August 29 but a ruling in favour of the five councils - who claim Mr Khan has acted illegally and beyond his powers - could force a delay to the launch date.
It is due to generate a net profit of £200m a year for the first two years for TfL.
Mr Justice Swift said: “I’m going to reserve judgement in this case. I understand that this is a case where it would be better if the judgement were sooner rather than later. I will do my very best to get you a judgement by end of term, but I can make no definitive promise.”
Mr Howell Williams, summing up the case brought by the London boroughs of Harrow, Hillingdon, Bexley and Bromley, and Surrey county council, said TfL’s consultation on the proposed expansion had been inadequate and confusing.
“What is at issue is the simple question: whether there was enough information to allow intelligent response, and including the public as well as those with expertise,” he said.
Earlier in the hearing, Ben Jaffey KC, for TfL, revealed that Mr Khan had considered allowing motorists living on the outskirts of London to access the £110m Ulez scrappage scheme but “rejected for good reason”.
He urged the court to reject a claim from the councils that restricting the scrappage scheme to London residents and businesses was unfair, irrational and inconsistent with the previous expansion of the zone.
It emerged on Wednesday that not all of the £110m will be available to compensate motorists seeking to upgrade their vehicle to avoid the Ulez - £7m will be taken up by “implementation costs”.
The five councils have asked a judge to rule that Mr Khan’s proposed expansion of the ultra-low emission zone to the Greater London boundary is illegal and should not go ahead.
According to documents presented to the court, TfL had told the mayor that, with a “finite” amount of funds available, the scrappage scheme would be “most effective” if targeted at low income Londoners and small businesses in the capital.
About £30m has already been allocated or paid out. The scheme is due to be widened at the end of July to allow London families in receipt of child benefit to apply for grants to scrap a car (£2,000) or motorbike (£1,000).
The five councils say that motorists living in the “buffer zone” around the Greater London boundary should also have been able to apply for help to scrap a non-compliant vehicle, to enable them to avoid the £12.50 a day Ulez levy.
But Mr Jaffey told the court: “The mayor’s decision was a perfectly proper and lawful one.
“It would be detrimental to public administration to quash the [scrappage] scheme now. It would create considerable uncertainty to those who have already received payments.”
Asked by the judge how the size of the £110m fund had been determined, Mr Jaffey said Mr Khan had “rounded up” a proposed £100m amount to £110m when he was told £7m would have to be spent on “implementation costs” administering the scrappage scheme.
The councils claimed that Mr Khan acted beyond his powers by seeking to expand the Ulez by varying the existing legal order rather than drafting a new one. They also claim there was a “gaping hole” in TfL’s consultation documents.
On Wednesday, Mr Justice Swift appeared to support the councils’ claim that the extension should have been set up via a new charging order.
Questioning Mr Jaffey, he said: “The extension of the Ulez... is something that could be described as novel.”
But Mr Jaffey will say that it would be “bizarre” if Mr Khan were not allowed to vary the Ulez legal orders, as they had already been varied several times previously – including to establish the central London Ulez in 2019 and the North/South Circular Ulez expansion in 2021.
“If the claimants’ case is correct, it presumably means that all of the variations to the emission zone order over the last 16 years have been ultra vires,” Mr Jaffey will argue.
Mr Howell Williams said on Tuesday that TfL’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.
He revealed that TfL had based its calculations on 106 numberplate-reading cameras in outer London, and had ignored evidence from about 1,500 cameras it has in central and inner London.
This had sparked concern about whether TfL’s calculations were “robust” and prevented the councils from accurately calculating the number of drivers likely to be adversely impacted.
But Mr Jaffey told the court that the consultation documents extended to more than 1,000 pages. “TfL expertise in drawing the line on how much information to provide is a relevant factor,” he said.
He said the 91 per cent estimated compliance figure for outer London had come from TfL’s computer modelling programme known as “Motion”, which was based on camera data, travel surveys and anonymised phone data.
He said that TfL had “very fairly” made clear in the consultation that some of the data was uncertain, and insisted its methods were “perfectly comprehensible”.
The court documents reveal that TfL does not have any Ulez enforcement cameras on the M1 and M4 motorways, including the M4 spur at Heathrow – London’s so-called “trunk roads” - “and does not intend to enforce the expanded Ulez on trunk roads either”.
Mr Jaffey told the court: “This is not an act of generosity. It’s simply because it’s not possible lawfully to drive on these very small sections or trunk road without also going on a road which is not a trunk road and which is within the charging area. TfL puts the cameras, and does the enforcement, in these other areas.”
