ULEZ expansion High Court hearings: Sadiq Khan has power to widen scheme, court told

The mayor has the power to vary existing schemes from the trivial to the ULEZ expansion, the High Court was told on Wednesday, as a hearing on Sadiq Khan’s clean-air zone entered its second and final day.

Five Conservative councils - Hillingdon, Bexley, Bromley, Harrow and Surrey - have taken the mayor and Transport for London (TfL), which is listed as an “interested party”, to court over the planned extension of the Ultra Low Emission Zone (ULEZ) to outer London.

In written arguments, Ben Jaffey KC, representing the mayor and TfL, countered the councils’ claim that the expansion is not a variation of the existing scheme, which is how it is being positioned, but instead requires a new legal entity to be set up from scratch, due to the scale of the amendment.

Mr Jaffey argued the scheme has already undergone several variations since Ken Livingstone first introduced the Low Emission Zone (LEZ) in 2007, and that “it would be bizarre if orders could not be amended to improve emissions standards as required”.

In court, Mr Jaffey was taken to task by Mr Justice Swift on whether the expansion constitutes a “make” rather than a variation, asking: “In principle, once you have set up the scheme, you can do anything you like?”

Mr Jaffey confirmed this to essentially be the case, with the key constraint being what is dictated in the mayor’s transport strategy, which goes before the London Assembly.

“The power of variation is exactly that, that in a sense even the most trivial variation…that would amount to a variation,” he told the court.

In addition to whether a new scheme was required to be drawn up, two other challenges are being heard: that the decision to expand the ULEZ was unlawful due to consultation materials being unclear and that it was unlawful due to a lack of consideration of the inclusion of non-Londoners in the scrappage scheme.

In his skeleton argument, Mr Jaffey said TfL provided “more than sufficient information” in its consultation, run between May 20 and July 29 last year, “to enable an intelligent response”.

He defended the use of automatic number plate reading (ANPR) cameras, of which it emerged just 106 are used in outer London, as opposed to 1,156 in inner London and 237 in central London, contributing to a claim in the consultation that 91% of vehicles seen in outer London would be compliant by the August 29 launch date.

He said, rather than relying solely on the cameras, “this was one of several different inputs into a complex model of compliance rates, traffic, emissions and air quality”.

“Consultees were entirely able to (and did) provide consultation responses on this point. No further information was required for a fair consultation,” he said.

During yesterday’s hearing, Mr Craig Howell Williams KC, representing the five councils, described the consultation as “not sufficiently clear”, raising concerns about the ability of consultees to adequately respond.

Mr Jaffey told the court on Wednesday that the consultation was “coherent and quite detailed”, with the level of information required determined by TfL, which has extensive expertise in such areas.

On the issue of the 91% claim, Mr Jaffey clarified that additional data-gathering methods, including a survey of travel paterns and anonymised and aggregated mobile phone data, were used to land on the figure.

He added: “The modelling is not an end in itself. It’s a way of investigating the pros and cons.”

The hearing is due to continue into Wednesday afternoon, with a decision expected from Mr Justice Swift in the coming weeks.