Mark McMurray: Low Emission Zones face legal scrutiny

Mark McMurray: Low Emission Zones face legal scrutiny

Mark McMurray

Following their initial introduction in Glasgow last June, Low Emission Zones (LEZs) are about to take root across all of Scotland’s key city centres. From later this week, we will see them go live in both Dundee and Aberdeen before being brought into effect in Edinburgh a month later, writes Mark McMurray.

From these dates, motorists can only enter these city centres zones without incurring a penalty charge if they are driving a vehicle with less-polluting emission standards. While their introduction may be well-intentioned, aimed at reducing emissions levels in our city centres, the experience from Glasgow has highlighted a high degree of controversy and some unanswered legal questions around these schemes.

Scotland’s first LEZ has been the subject of criticism and protests from some of Glasgow’s business community and taxi trade, with a key point of contention being the penalty regime and the seemingly high level of charges, set by the Scottish Government, that have been imposed on non-compliant drivers. In its first three months of operation alone, over £500K in penalty charges were imposed on drivers while figures released earlier this month show more than 35,000 penalty charges have now been issued since Glasgow’s LEZ came into force.

Penalties begin with a £60 charge for the first contravention and double every subsequent contravention until reaching a cap of £480 for cars and most other vehicles, or £960 for buses and HGVs.

In an unsuccessful legal challenge last year to the Glasgow LEZ’s contribution towards meeting air quality objectives, the judgement included a significant point about an absence of reasoning for the level of penalty charges, which are higher than those imposed for violations of for other road schemes pursuing air quality objectives. The court also highlighted a lack of information explaining why lower penalty charges would not be sufficient to dissuade non-compliant vehicles from entering the LEZ.

The judge did not have to rule on the level of charges but their comments are particularly relevant given the ongoing publicity about the amount of revenue that has been generated through penalty charges. When coupled with recent reports that emission levels have not declined in Glasgow city centre and have substantially increased in areas just outside the LEZ boundary, it seems the controversy around LEZs is not going away.

The Glasgow case therefore leaves an open question about whether there could be a successful challenge to the level of penalty charges in future. To counter any such challenges, the Scottish Government should be focused on building an evidence base to demonstrate why the level of penalty charge is appropriate and proportionate, setting out an explanation on why lower penalties would not be sufficient in dissuading drivers from entering the LEZ in non-compliant vehicles. They should also have a clear rationale to distinguish the LEZs from other schemes which impose lower penalties.

Part of the reason the legal challenge to Glasgow’s scheme proved unsuccessful was due to the fact that the expert air quality evidence presented by the pursuer was provided a year after the decision was made to implement the scheme, and did not follow the right methodology. The recent reports on Glasgow’s emission levels post-LEZ implementation suggest that local authorities will need to be prepared to consider and respond to expert evidence about a scheme’s contribution towards meeting air quality objectives. This will apply when introducing new LEZs, and extending or reviewing existing ones.

With the roll-out of LEZs across Scottish cities, future legal challenges can be anticipated.

Mark McMurray is a partner at CMS

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