R (Eco-Power Company UK Ltd) v Transport for London

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
Judgment Date21 May 2010
Neutral Citation[2010] EWHC 1683 (Admin),[2008] EWHC 846 (Admin)
Docket NumberCO/3150/2008
Date21 May 2010

[2008] EWHC 846 (Admin)

IN THE HIGH COURT OF JUSTICE

CO Ref CO/3150/2008

ADMINISTRATIVE COURT

BEFORE His Honour Judge Hickinbottom Sitting as an Additional Judge of the High Court

QUEEN'S BENCH DIVISION

Between
The Queen
On The Application Of Eco-power.co.uk Limited
claimant
and
(1) Transport For London
(2) Public Carriage Office
defendants

APPROVED JUDGMENT

22

APRIL 2008

Andrew Butler (instructed by Edwin Coe LLP) appeared for the Claimant.

Martin Chamberlain (instructed by TfL Legal) appeared for the Defendants.

THE ROYAL COURTS OF JUSTICE, STRAND, LONDON WC2A 2LL

I direct pursuant to CPR Part 39 PD 6.1 that no official shorthand note shall be taken of this judgment and that copies of this version, subject to editorial corrections, may be treated as authentic.

Introduction

Introduction

1

The Claimant (Eco-Power.co.uk Ltd, “Eco-Power”) manufactures and supplies systems for the reduction of vehicle exhaust emissions.

2

Under the relevant statutory scheme to which I refer below (Paragraphs 5 and following), the First Defendant (Transport for London, “TfL”) through the Second Defendant (the Public Carriage Office, “the PCO”) is responsible for the activities of hackney carriages or taxis licensed for use in London.

3

Eco-Power seeks judicial review of the Defendants' decision of 28 March 2008 to withdraw approvals for the installation and use in London taxis of its emission reduction systems. Following interim relief granted by Griffith Williams J on 28 March, on 7 April Stanley Burnton J ordered a hearing of the application for permission immediately followed by the full hearing if permission were granted. That rolled up hearing was heard before me on 18 April, and this is the reserved judgment from that hearing.

4

It may assist if at the outset I identify the main players in the events that have led to this claim being made. Mr David Davies (“Mr Davies”) is the sole director and shareholder of Eco-Power. Mr David Stock (“Mr Stock”) is the Head of Service Delivery at the PCO. Mr Randall O'Dell (“Mr O'Dell”) is a Senior Compliance Officer at the PCO. Mr Finn Coyle (“Mr Coyle”) is the Transport Accreditation Manager of the Energy Saving Trust (“EST”, to which the PCO has given the task of assessing emission-reducing systems for approval: see Paragraph 10 below). Mr Matthew Vincent (“Mr Vincent”) is a Consultant Engineer with 10 years' experience in the development of exhaust treatment systems, retained by EST to assist on the emission-reducing system accreditation programme.

The Background

5

The relevant statutory background is set out in the Claimant's Skeleton Argument (Paragraphs 2–8) and the Mr Stock's First Witness Statement 11 April 2008 (Paragraphs 3 and following). It is uncontentious.

6

Section 362 of the Greater London Authority Act 1999 imposes a duty on the Mayor of London to publish a London Air Quality Strategy. Paragraph 4D.32 of the Strategy published in September 2002, provides that the Mayor will introduce minimum standards to ensure that emissions from London taxis are reduced on a phased basis: and Paragraph 18 states that the Mayor, through TfL, will use regulatory powers to ensure that from set dates all London taxis will comply with increasingly demanding standard limits for emission levels set by the European Council (Directive 98/96/EC), known as “Euro 1”, “Euro 2” and “Euro 3”. Euro 3 —the latest and most rigorous standard —requires a reduction of emissions to below 0.1g/km for particulate matter (PM10) and 0.78g/km for the various oxides of nitrogen (NOx) when tested to the EEC Emissions Test Protocol 70/220 at a Vehicle Certification Agency accredited emissions test laboratory (“a VCA laboratory”).

7

The PCO was created as a department of the Metropolitan Police pursuant to the London Hackney Carriages Act 1850 to regulate the activities of London taxis, as the police were obliged to do by s2 of the Act. By s253 of and Schedule 20 to the Greater London Authority Act 1999, all the powers and obligations of the Metropolitan Police relating to taxis were transferred to a new body, TfL, which was created by s154 of that Act. The operation of the PCO was simply transferred to TfL and, by transitional provisions contained in Schedule 20, orders made under the 1850 Act or under various other enactments were treated as having been made by TfL.

8

One such enactment was the Metropolitan Public Carriage Act 1869, s6 of which now provides that TfL shall have the function of licensing London taxis. Section 6(2) provides that a licence may be granted “on such conditions as may be prescribed”, which (by virtue of s4) means prescribed by a London Cab Order made or deemed made by TfL. One such order (the London Cab Order 1934 (1934 SI No 1346)) provides that a taxi licence may be refused “if the applicant fails to satisfy [TfL] that the cab in respect of which the application is made conforms to the conditions of fitness from time to time laid down by [TfL]…”.

9

The ability to impose such “conditions of fitness” provided a mechanism by which the Mayor through TfL sought to honour the commitment in the London Air Quality Strategy with regard to reducing emissions from taxis to European standard levels. The current conditions of fitness were issued by TfL on 1 January 2007 (“the 2007 Conditions”). These provide, amongst other things:

“5.3 No fittings, other than those approved, may be attached to, or carried on the inside or outside, of the vehicle.

5.4

No modification may be carried out to a taxi without the prior approval from the PCO. Before considering any unapproved modification to a taxi, approval must be sought from the PCO.

….

13

New taxi models must meet the current and relevant EC Directive for exhaust emissions, i.e. the respective Euro standard. Current taxi models must meet prescribed emissions standards (currently Euro 3 for NOx and PM10 by July 2008).”

In short, those provisions meant that new taxis had to be manufactured to a specification that complied with Euro 3 in respect of emission limits, and taxis already on the road were required to meet that standard by some form of modification by July 2008. By virtue of Condition 5, any modification of course had to be approved by the PCO.

10

The PCO has no particular technical expertise of its own. It therefore gave the task of approving systems of modification for these purposes to EST, an independent non-profit making organisation whose functions include the provision of information, accreditation and evaluation in relation to technologies for clean and low-carbon transport.

11

In two PCO Notices (32/04 and 09/05), the PCO defined the procedure for securing approval which included (i) execution of emissions testing at a VCA laboratory (“emissions testing”), and (ii) completion of 10,000 miles in use as a taxi while fitted with the emissions reduction system (“durability testing”). The criterion for approval of any system was simple. If the system passed the emissions test (i.e. the emissions were less than the Euro 3 standard levels) before and after the durability testing, EST would recommend to the PCO that approval should be given. As Mr Coyle said (First Statement 11 April 2008, Paragraph 8); “This recommendation is made on the basis of the emissions performance of the equipment only”. Leaving durability aside (as it is not in issue before me), in relation to an application for approval of an emission-reduction systems, the PCO's only concern was whether that system would reduce emissions to Euro 3 standard levels. Approval was entirely dependent upon this minimum level of functional efficacy.

12

However, after approval, the PCO remained open to considering evidence that a particular system was not performing its function properly and, when the PCO wrote to a supplier informing them of approval, it expressly “[reserved] the right to withdraw authority for its installation an use should any undesirable features become evident or are reported.” This reservation is important: the PCO acted under it when withdrawing Eco-Power's authorisation, the decision now under challenge.

Exhaust Gas Recirculation

13

This claim particularly concerns the ability of Eco-Power's system to reduce NOx emissions.

14

Although I have before me no evidence as to what they might be, I understand there are other ways in which NOx emissions may be reduced —but such emissions are generally controlled by a technique know as exhaust gas recirculation (“EGR”). Some of the engine exhaust gases are recycled to the intake to dilute the fresh mixture. The exhaust gases affect the combustion process by reducing combustion intensity and limiting gas temperatures in the combustion chamber such that the extent of the reaction between nitrogen and oxygen is itself limited. Mr Vincent said (First Statement 11 April 2008, Paragraph 8):

“Lower NOx emissions are strongly correlated with reduced in-cylinder gas temperatures, and reduced reaction between nitrogen and oxygen. It is possible to reduce NOx emissions in other ways, but EGR is a popular, effective and relatively low cost method of securing reduced NOx emissions. I noted that all the emissions reduction systems approved by EST and subsequently offered for sale commercially following the early 2006 completion of approved trials used some form of EGR.”

15

It is important to note:

(i) As manufactured, some older pre-Euro 3 taxis (including TX1-type taxis) have some EGR. However, the degree of recirculation is insufficient to reduce the NOx to the Euro 3 limit. The emission-reduction modification increases the proportion of exhaust gases recycled and consequently increases the reduction in NOx. As I understand it, in practice the recirculation system installed at the time of manufacture is usually disabled, and all of the recycled gases pass through to the combustion chamber via the system that is...

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