R (City of Westminster) v Mayor of London
| Jurisdiction | England & Wales |
| Judge | Mr Justice Maurice Kay |
| Judgment Date | 31 July 2002 |
| Neutral Citation | [2002] EWHC 2440 (Admin) |
| Docket Number | Case No: 2194/2002 and 2517/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 July 2002 |
[2002] EWHC 2440 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Honourable Mr Justice Maurice Kay
Case No: 2194/2002 and 2517/2002
Mr Roger Henderson QC, and Mr Charles Mynors and Ms Marina Wheeler (instructed by The Director of Legal Administrative Services)) for the Claimant (1).
Miss Lisa Busch (instructed by Tilbrooks) for Claimant (2)
Mr Charles George QC, Mr James Pereira and Mr Alex Booth (instructed by DLA) for the Defendant and Transport for London (1st named Interested Party).
Mr Roger Henderson QC and Mrs Wendy Jane Outhwaite appeared for the Royal Borough of Kensington and Chelsea (Interested Party).
No one doubts that traffic congestion in Central London is a serious problem. On 26 February 2002, the Mayor of London, Ken Livingstone, confirmed an Order, the effect of which is to introduce a Congestion Charging Scheme ("the Scheme") in Central London with effect from 17 February 2003. In these proceedings, the City of Westminster ("Westminster") seeks to challenge the Mayor's decision. Westminster is supported by the Royal Borough of Kensington and Chelsea (RBKC), whose status is that of Interested Party. In separate proceedings, two residents of Kennington, Cathy Preece and Gareth Adamson, acting on behalf of themselves and of the Kennington Association, also seek to challenge the same decision. I shall refer to them as "the Kennington Residents". On 3 July 2002, Scott Baker J ordered that the two cases be heard together and that the same hearing should consider the applications for permission to apply for judicial review and, if permission be granted, the substantive applications.
The Scheme
The Scheme is set out in the Greater London (Central Zone) Congestion Charging Order 2001, the essential features of which have been described in an official document as follows:
"£5 daily charge, 7am – 6.30pm, Monday to Friday, except public holidays.
Charge applies per vehicle, per day, so allowing more than one trip by the same vehicle within the day.
Weekly, monthly and yearly passes will also be available, but no extra discounts for these; payments enabled by phone, internet, post or at retail outlets.
Boundary of zone formed by the Inner Ring Road, on which there will be no charge levied. This comprises: Marylebone Road, Euston Road, Pentonville Road, City Road, Great Eastern Street, Commercial Street, Tower Bridge Road, New Kent Road, Kennington Lane, Vauxhall Bridge Road, Grosvenor Place, Park Lane, Edgware Road. Not a 'cordon' scheme based solely on cameras at boundary points; any vehicle moving within the zone, whether or not crossing the boundary, will be monitored by cameras throughout the zone. Zone is 8 square miles, or 21 square kilometres in size, representing 1.3% of the total 617 square miles (or 1579 square kilometres) of Greater London; 174 entry and exit boundary points around zone.
£80 penalty for failure to comply, reduced to £40 if paid within two weeks. Penalty will rise to £120 for non-payment.
Total budget to set up the scheme is £200 million, including £100 million of complementary traffic management measures being spent across Greater London.
Scheme expected to raise at least £130 million (as a prudent planning figure) in revenue per year – all of which must by law be spent on transport improvements in Greater London for ten years from the start of the scheme……"
The Scheme contains exemptions which extend to, amongst others, motorcycles, taxis, private hire vehicles, emergency service vehicles, large passenger vehicles, certain public service vehicles and vehicles of disabled persons.
It may be that the fertile minds of many readers of that summary will immediately raise questions, particularly of the "What if" variety. For present purposes, however, that is not the point because the challenges in these proceedings are not to the Scheme in principle or to the details which I have just summarised, except that the challenge on behalf of the Kennington Residents takes issue with part of the southern boundary of the zone.
The statutory framework: the enabling provisions.
The Greater London Authority Act 1999 creates the Greater London Authority (GLA) consisting of the Mayor and the Greater London Assembly. The functions of the GLA are exercisable, variously, by the Mayor, the Assembly or both. Section 141 (as amended by section 199 of and Schedule 13 to the Transport Act 2000) is headed "General transport duty". It provides:
"(1) The Mayor shall develop and implement policies for the promotion and encouragement of safe, integrated, efficient and economic transport facilities to, from and within Greater London.
(2) The powers of the Authority under this Part shall be exercised for the purpose of securing the provision of the transport facilities and services mentioned in subsection (1) above.
(3) The transport facilities and services mentioned in subsection (1) above include facilities and services for pedestrians and are—
(a) those required to meet the needs of persons living or working in, or visiting, Greater London, and
(b) those required for the transportation of freight."
Section 142 requires the Mayor to prepare and publish a "transport strategy" containing his policies under section 141 (1) and his proposals for discharging the duty under section 141(2). Pursuant to this provision, The Mayor's Transport Strategy was published in July 2001. It included the proposal to introduce a congestion charging scheme in Central London.
Section 154 is the foundation for a body corporate to be known as Transport for London (TfL). It is required to exercise its statutory functions, amongst other things, in accordance with guidance or directions issued to it by the Mayor; for the purpose of facilitating the discharge by the Authority of the duties under section 141(1) and (2); and for the purpose of securing or facilitating the implementation of the Transport strategy (section 154(4)). It is also required to have regard to the other Mayoral strategies, which include the Air Quality Strategy, which is presently in draft form
By section 295 and Schedule 23, charging schemes may be introduced by TfL, the Council of any London Borough or the Common Council of the City of London. Any TfL scheme is to be operated by TfL, which would also be the charging authority. However, the Mayor has discretion over the design of such a scheme and, acting on behalf of the GLA, approves the final Order giving effect to the Scheme. That is what he was doing by the approval of 26 February 2002.
The Westminster challenge
Westminster instituted judicial review proceedings on 7 May 2002. Briefly, the grounds of challenge relate to
(1) alleged deficiencies in the consultation process and the provision of information;
(2) the decision not to carry out an Environmental Impact Assessment (EIA) which, it is said, was required under Directive 85/337/EEC (as amended) and/or the Town and Country Planning (Environmental Assessment) Regulations 1999 or which, if not required by either, ought to have been undertaken on a voluntary basis;
(3) the decision not to hold a Public Inquiry into the implementation and operation of the Scheme before approving it; and
(4) alleged breaches of the European Convention on Human Rights pursuant to the Human Rights Act 1998.
The challenge on behalf of the Kennington Residents adopts some of these grounds and reformulates them from the standpoint of alleged "victims" within the meaning of section 7 of the Human Rights Act.
The consultation process – a factual outline
Schedule 23 to the 1999 Act does not in itself require consultation. Paragraph 4(3)(a) provides that the GLA " may…..consult, or require an authority making a charging scheme to consult, other persons". In the present case, it was decided to consult. In view of the importance of the proposal, that was inevitable. It is criticism of the consultation process which lies at the heart of this case, impacting to a greater or lesser extent on all the grounds of challenge. Accordingly, before I turn to the specific grounds of challenge, it is appropriate for me to outline the process which took place. I shall have to go into further detail later. For the time being, these are the milestones.
In July 2000, the Mayor asked TfL to investigate the implementation of a traffic congestion charging scheme based on Road Charging Options for London (ROCOL), a report which had been commissioned by Central Government and which had been published in March 2000. Also in July 2000, the GLA published Hearing London's Views, the purpose of which was to seek the view of "key stakeholder groups" on congestion charging.
Westminster responded in writing on 29 September 2000, expressing opposition and raising a number of concerns including: (a) insufficiency of time to introduce the necessary public transport improvements ahead of the commencement of the Scheme; (b) lack of evidence to show that the Scheme would reduce congestion; (c) effects on quality of life of residents and local businesses; (d) effect on air quality; (e) increase in traffic on and around the zone boundary; (f) the diversion of traffic onto local and residential roads which were unsuitable.
In October 2000 the Congestion Charging Scrutiny Panel of the GLA published a report on the technical feasibility of the Mayor's proposals. It referred to the Scheme in grandiose terms as "the biggest civil change to...
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