Mr Justice Maurice Kay :
- 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 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 London since the Second World War” and expressed concerns about possible “adverse environmental and safety impacts” at and beyond the zone and potentially detrimental effects on small businesses. The following month, the Mayor responded positively to the Scrutiny Panel’s suggestion that further research was required.
- The Mayor published his Draft Transport Strategy in January 2001. It proposed that TfL should develop a congestion charging scheme for Central London. In May 2001, he issued Interim Guidance from the Mayor of London to Transport for London on the procedures for introducing a congestion charging scheme within Greater London. This provided for a “preliminary consultation” period from 20 June until 13 July. Material was sent to 130 “key stakeholders” for their comment. Meetings were held and written responses were received from 25 of the stakeholders. Just before the end of that consultation period, on 10 July the Mayor published the Mayor’s Transport Strategy in which he referred to the introduction of a congestion charging scheme as a priority measure for reducing congestion.
- On 23 July 2001, TfL promulgated the Greater London (Central Zone) Congestion Charging Order 2001, the purpose of which was to provide a legal framework for the proposed scheme. To a considerable extent it was in the form which the Mayor later approved. It provided for a period of public consultation to run from ten weeks from 23 July until 28 September but that was later extended for certain consultees including Westminster. The documents sent to consultees were in the form of an information pack with numerous enclosures. In August, in the midst of the consultation, a background technical paper, Modelling of Traffic and Transport Effects, was produced with more detailed information.
- Westminster sent a written response to this consultation round on 19 October, prefacing its comments with the following:
“Consultation to date has been fundamentally flawed. Information promised in parallel with the consultation has either been inadequate or provided extremely late. The City Council has had insufficient detail and insufficient time to comment properly on the scheme…..Much more detail is required to be able to draw meaningful conclusions from this work and, if such detail were to be made available, the City Council would need sufficient time to commission any studies and analyse and report on them.”
Westminster called for the withdrawal or postponement of the proposal. Alternatively, it requested a Public Inquiry “as a matter of natural justice|”. It complained that traffic modelling information was provided three weeks after the start of the consultation period and was “lacking in detail” and that preliminary proposals for traffic management measures were eventually provided after the originally intended closing date for consultation responses (although that date was in fact extended). Westminster enclosed a copy of a report from consultants which it had commissioned in April 2001 (“the Peter Brett Report”), recognising that some of its concerns had already been addressed by TfL, whilst “the main points still apply”. Also enclosed was a 13 page appendix containing detailed objections and comments. It made clear that Westminster is opposed to congestion charging (although, ironically, in 1999 Westminster had been in favour of introducing its own scheme).
- TfL appointed the firm of WS Atkins to analyse and report upon replies from consultees, of which there were 2,274 – 149 from the stakeholders, 232 from other organisations including businesses and residents’ associations and 1,893 from individual members of the public. WS Atkins identified a number of concerns, including the possibility of increased traffic congestion near the boundary of the Zone, adverse effects on business and complaints about the consultation process itself. There were also objections to the principle of congestion charging. Throughout the consultation period there had been a public exhibition in two central locations and, in addition, two public meetings had been held. There had been media advertisements Of the London Boroughs, about two-thirds expressed support for the Scheme and one fifth opposed it. Across the board, the two most frequently expressed concerns were the need for a prior improvement in public transport and increased congestion at or near the boundary of the charging zone.
- On 10 December 2001, TfL sent to consultees some proposed modifications to the Scheme, arising out of the consultation responses. Comments were invited, to be submitted by 18 January 2002. The modifications included a concession in respect of the residents’ discount in two small areas (one of which is in Westminster), a slight adjustment to the zone boundary in Park Lane and a change in the operational hours so as to finish at 6.30 rather than 7.00p.m. Westminster responded by a letter dated 16 January 2002, reitierating its previous stance but at the same time welcoming some of the proposed modifications and criticising others. It wrote again on 18 February 2002 repeating some of its concerns including its complaint about a lack of modelling information.
- On or about 8 February 2002, TfL produced its Report to the Mayor (“the TfL Report”), a document running to more than 60 pages (excluding lenghty annexes), which was intended to be and became the main internal advice upon which the Mayor would base his decision. It was not disclosed to consultees at the time – no one suggests that it should have been – but it was published with the Mayor’s Statement, explaining his decision, on 26 February 2002. To assist him with his decision, in addition to the TFL Report, the Mayor had the benefit of further advice from senior officials on what are called Mayoral Approval Forms. They were dated 18 and 23 February. Amongst other things, they referred to the latest correspondence from consultees which had come in after the official closure of the consultation period. This included Westminster’s letter of 18 February.
- These, then, were the milestones in the consultation process. However, it should not be supposed that they represent the full extent of contact or the flow of information between TfL and Westminster during that period. One of the documents prepared by GLA officials for these proceedings is an undisputed chronology of meetings and correspondence between TfL officials and Westminster officials. It shows extensive and continuous contact
- The Kennington Association responded to the consultation rounds by letters dated 15 November 2001 and 18 Janaury 2002. They were sent under the name of Professor Gordon McDougall, its chairman. There had been other correspondence and there was a public meeting in Kennington on 15 October 2001 which was attended by a TfL official. On 24 Janaury 2002, the Mayor and officials met with a number of Kennington residents. Cathy Preece seems to have been involved in some of the meetings which were taking place in Kennington but does not appear to have been prominent before the commencement of proceedings. Gareth Adamson, on the other hand, was more deeply involved. He visited TfL headquarters and wrote letters during the consultation process. He is critical of the timing of and facilities provided in relation to consultation but these complaints are not such as could provide a basis for challenging the Mayor’s decision.
Ground 1: Information and Consultation
- In its amended form, the first ground of challenge reads:
“The Mayor failed to obtain and consider the information (including information from others relying on the quantity and quality of information emanating from TfL) necessary to permit him to confirm the…..Order…..particularly as set out in Grounds 2, 3 and 4…..and, further, insofar as independent expert evidence in respect of the environmental impact of the Scheme had been obtained and was screened from him. In the result, the quality of the consultation was deficient. More particularly, the information relating to traffic modelling was and remains inadequate; and modelling information relating to air quality…..had not been provided to the Mayor and [Westminster].”
The underlined passages represent the amendment which was permitted, by consent, in the course of the hearing. Even before the amendment, Mr. Henderson QC referred to this ground of challenge in his skeleton argument as “the heart of the claim”. Essentially, it falls into two parts: (1) the Mayor had insufficient information upon which to make a valid decision – a shortcoming which would have been overcome by the commissioning of an EIA and/or the holding of a Public Inquiry; and (2) Westminster was disabled as a consultee because of the insufficiency of information supplied to it and, as a result, Westminster was (and other consultees were) not in a position to provide to the Mayor all the material it would have wished and by which his decision would have been better informed. The interplay between this ground of challenge and the ones which follow, particularly those relating to an EIA and a Public Inquiry, is self-evident. Before I turn to the circumstances of this case, it is appropriate for me to refer to the legal principles upon which the rival contentions are based.
- I begin, as did Mr. Henderson, with first principles. In Associated Provincial Picture Houses v. Wednesbury Corporation  1 KB 223, the well-known judgment of Lord Greene MR contains these passages:
“The Court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to have taken into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account.” (p 223)
“…..a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider.” (p 229)
In Secretary of State for Education v. Tameside MBC  AC 1014 Lord Diplock added (at p. 1065):
“Or, put more compendiously, the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly? ”
The case for Westminster is put on the basis that the Mayor proceeded to a decision on the basis of an insufficiency of information and, what is more, those advising him were in possession of additional information of which they did not inform him – the allegation of “screening”. Although that is a colourful word, it is not suggested that officials or the Mayor have acted in bad faith.
- So far as consultation is concerned, Schedule 23 to the Greater London Authority Act 1999, which deals with congestion charging schemes, provides in paragraph 4(3):
“…..the Authority may
(a) consult…..other persons..”
In fact, the Mayor rightly decided to consult in the present case. Both sides agree that the relevant principles are those recently restated by the Court of Appeal in R. v. North and East Devon Health Authority, ex parte Coughlan [2001 1 QB 213, 258:
“……whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be consciously taken into account when the ultimate decision is taken.”
There is a later passage in the judgment of the Court (Lord Woolf MR, Mummery and Sedley LJJ) which is also relevant to the present case (p259):
“It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject-matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it might be quite onerous, goes no further than this.”
A little later in the judgment (also p 259) there is an application of the principles to the facts of that case. It bears repetition here:
“It turned out when the consultation was over that the health authority had had before it a paper on ethical decision-making which Miss Coughlan and her advisors would have wanted an opportunity to comment on…..It was not part of the proposal and not necessary to explain the proposal. The risk an authority takes by not disclosing such documents is not that the consultation process will be insufficient but that it may turn out to have taken into account incorrect or irrelevant matters which, had there been an opportunity to comment, could have been corrected. That, however, is not this case……We conclude therefore that although there are criticisms to be levelled at the consultation process, and although it ran certain risks, it was not found flawed by any significant non compliance with the …..criteria.”
In this summary of the legal principles I have deliberately confined myself to the authorities which all parties accept as definitive. I say “all parties” because, although the Kennington Residents’ Claim Form does not contain an express ground of challenge in the terms of Westminster’s Ground 1, it is implicit in their case that the consultation process was deficient for the same reasons advanced by Westminster.
- In the course of lengthy written and oral submissions, Mr. Henderson has directed many criticisms at the approach of the Mayor and his advisors. Some criticisms are large-scale and fundamental to Westminster’s case. Others are far less obviously so. In this lengthy judgment I shall not be dealing with every criticism. It seems to me that, if this challenge is to succeed, Westminster will need to persuade me on one or more of the central criticisms. For the record, the full catalogue of areas of allegedly deficient information was listed in Mr. Henderson’s skeleton argument as follows:
“(a) local traffic effects, particularly those outside the charging zone;
(b) local air quality impacts, particularly on or near the boundary of the charging zone;
(c) the compatibility of the Scheme with his draft Air Quality Strategy and with Westminster’s Air Quality Monitoring Strategy;
(d) the visual impacts of the signs and cameras;
(e) the [existence] of the research and scoping report by Halcrow Fox and its reference to the need for further work to be done;
(f) the need to deal particularly with the effect of increased traffic on orbital routes and the consequent effect on junctions and queuing;
(g) impacts on businesses; and
(h) impacts on residential property values.”
Of this list (g) and (h) figured little in Mr. Henderson’s submissions but residential property values play an important part in the Kennington Residents’ case, that aspect of which I shall consider when I come to deal with Ground 3 (Public Inquiry) and Ground 4 (Human Rights). As I see it, it is in relation to traffic implications, air quality and the visual impacts of signs and cameras that Westminster needs to establish its case on Ground 1. I shall deal with these categories separately. I shall also address another issue which played an ever-increasing part in Mr. Henderson’s submissions, namely an alleged failure of the Mayor to have regard to Westminster’s statutory highway functions, particularly those arising under section 122 of the Road Traffic Regulation Act 1984.
(1) Traffic implications
- The essence of Westminster’s complaint is that it was not provided with sufficient information about predicted or predictable traffic flows consequent upon the introduction of the Scheme to enable it properly to address its own statutory responsibilities as a highway authority in respect of roads inside and outside the charging zone or to respond effectively in the consultation process. In the course of his submissions, Mr. Henderson seemed to accept that the information in respect of the Inner Ring Road was sufficient. The complaint is that information on a street-by-street basis in the vicinity of the Inner Ring Road was inadequate and, of course, it is in relation to such roads or streets that Westminster has its own statutory responsibilities.
- Information of the kind which is in issue here is based on techniques of traffic modelling. TfL has carried out a great deal of traffic modelling in the course of its consideration of the proposed Scheme. There are different models, referred to acronymously as SALT, TRANSYT, SATURN and the like. There is some debate between expert officials on both sides in their witness statements as to their relative merits. However, in this jurisdiction and on the basis of the material before me, I am in no position to resolve that debate. The SALT model had been validated as fit for the present purpose and, to the extent that the selection of models was a matter for TfL officials, it cannot be said that that selection was erroneous in law. It was a matter of judgment.
- On behalf of the Mayor, Mr. George QC submits that appropriate and adequate information about traffic implications was supplied to Westminster from an early stage and on a continuing basis. He refers to what was contained in the Stakeholder Pack in August 2001, including the Background Technical Paper which provided “more detailed information on the traffic and transport modelling work carried out by TfL to inform the development of the Scheme”. It explained the use of different models by TfL and its programme of ongoing modelling and refinement, the use of higher and lower sensitivity projections and anticipated changes in travel and transport patterns on a Borough basis. In addition TfL participated in regular and frequent meetings and correspondence with Borough officials and ALG. The evidence includes a chronology of contact between TfL and Westminster officials between November 2000 and February 2002. It was extensive and gave rise to repeated opportunities for discussion. TfL supplied Boroughs with SALT modelling plots in September 2001, with higher and lower sensitivity projections of expected traffic changes on routes in their areas. Further plots were referred to at an ALG meeting in December and were supplied to the Boroughs in February, ahead of the Mayor’s decision, at a time when he was still receiving and considering relevant representations. Indeed, at the time of the hearing of the case, the provision of further SALT plots was imminent. The plots relate to roads both inside and outside the charging zone, as well as to the Inner Relief Road. They do not relate to all local roads. The case for the Mayor is that they and the other information provided were more than enough to enable Westminster to participate fully in the consultation process and to address its own statutory functions as a highway authority. It is suggested that (1) the level of certainty and detail contended for by Westminster is excessive and, if produced, would have a "spurious accuracy” in the field of this inexact science; (2) it was entirely proper for the modelling to continue up to and beyond the Mayor’s decision and to become a monitoring programme following implementation; (3) the information provided prior to the Mayor’s decision was sufficient to enable Westminster to address its statutory functions, armed also with the local knowledge of its own officials, as is borne out by events in other Boroughs; and (4) it was not necessary for Westminster to have identified every single problem or to have begun to resolve it before the Mayor’s decision.
- It is first necessary for me to assess the submissions on both sides (and the copious detailed evidence referred to in them but with which I shall not clutter this judgment) in the light of the Coughlan tests. So far as consultation is concerned, I am in no doubt that the Coughlan tests are satisfied, The proposals were still at a formative stage (this is not disputed). The material supplied to the consultees included sufficient reasons for the proposed scheme to enable Westminster and others to give intelligent consideration and an intelligent response. Indeed, there was a statement of reasons in the Stakeholder Pack which was largely ignored in the presentation of Westminster’s case. In the event, however, Westminster was provided with a great deal of information on traffic implications and, in my judgment, it went further than Coughlan requires for consultation purposes. Westminster was given adequate time in the consultation process and, indeed availed itself of the opportunity to make further representations right up to the last metaphorical minute. Westminster does not expressly suggest that the Mayor did not conscientiously take its representations into account. To the extent that there is an undercurrent of suggestion that the Mayor had in some way predetermined the matter, the answer lies in the distinction between predetermination and “predisposition arising from prior consideration of the issues”. As Ouseley J said in R (on the application of Cummins) v. London Borough of Camden  EWHC Admin 111 (para 256), approved by the Court of Appeal in R(on the application of Adlard v. Secretary of State for the Environment  ECWA CA 735 (para 25, per Simon Brown LJ):
“The decision-making structure, the nature of the functions and the democratic accountability of Councillors permit, indeed must recognise, the legitimate potential for predisposition towards a particular decision. ”
Here, of course, the principle of the Scheme had already formed part of the Mayor’s Transport Strategy, which was itself the subject of prior consultation and which stands unchallenged by judicial review.
- If Westminster has no legitimate complaint about the information in relation to traffic implications when judged against the Coughlan tests for proper consultation, does it still have a case based on insufficiency of information for the performance of its own statutory functions? In my judgment, it does not. It was at all times possible and practicable for Westminster to address its statutory duties as a highway authority, just as other Boroughs have done. Those duties were and are ongoing and did not and do not require all solutions to be finalised with certitude by a particular date. Sufficiency of information for this purpose is to a large extent a question of fact and degree. I accept Mr. George's submissions on this issue.
- Mr. Henderson raises a related issue, submitting that the approval of the Mayor and his advisors has not been rigorous, contenting themselves with satisfaction that the traffic problems are “manageable” or “can be accommodated”. It is suggested that this sells short the requirements of the Greater London Authority Act 1999 section 141(1), which imposes on the Mayor the duty to “develop and implement policies for the promotion and encouragement of safe, integrated, efficient and economic transport facilities”. He emphasises “efficient”. I do not consider that Westminster has come near to establishing a case that in relation to the consultation process, the provision of information or the ultimate decision itself, the Mayor acting by himself or via his officials failed to comply with that duty. There is a related matter to which I now turn.
Road Traffic Regulations Act 1984, section 122
- It is submitted on behalf of Westminster that the decision of the Mayor is flawed because he failed to have regard to Westminster’s duties under section 122 of the Road Traffic Regulations Act 1984. Section 122 (as amended) provides:
“(1) It shall be the duty of [every] local authority upon whom functions are conferred by or under this Act, so to exercise the functions conferred on them by this Act as (so far as practicable having regard to the matters specified in subsection (2) below) to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) and the provision of suitable and adequate parking facilities on and off the highway..…
The matters referred to in subsection (1) above as being specified in this subsection are –
(a) the desirability of securing and maintaining reasonable access to premises;
(b) the effect on the amenities of any locality affected and (without prejudice to the generality of this paragraph) the importance of regulating and restricting the use of roads by heavy commercial vehicles, so as to preserve or improve the amenities of the areas through which the roads run;
(bb) the strategy prepared under section 80 of the Environment Act 1995 (national air quality strategy);
(c) the importance of facilitating the passage of public service vehicles and of securing the safety and convenience of persons using or desiring to use such vehicles; and
(d) any other matters appearing to…..the local authority…..to be relevant.”
It is common ground that the introduction of the Scheme will involve the London Boroughs, particularly those in the area of the Inner Ring Road, in the devising and execution of traffic management measures. It is also clear that, in the discharge of those functions in its capacity as a highway authority, Westminster must act in accordance with section 122. A trawl through the vast amount of documentation spawned by this case confirms that at no stage during the consultation process, in the TfL Report, in the advice to the Mayor or, for that matter, in Westminster’s responses to the consultation or even in its sixty page Claim Form or in Mr. Henderson’s 67 page Skeleton Argument, was section 122 ever referred to in terms. Indeed, it was not added to the eight volumes of authorities and statutory materials until the first morning of the hearing. It has the appearance of something of an afterthought but that does not necessarily mean that it is unimportant. The fact that it has developed from a conspicuous absence in the Skeleton Argument to a new position as (in Mr. Henderson’s words) the eminence grise in this case (that being the title of a six page written submission which was handed in on the sixth and final day of the hearing) is not in itself determinative of the worth of the point. Moreover, it is right to say that in its Claim Form Westminster did refer to “its statutory functions in relation to traffic”, perhaps reflecting a complaint in its consultation response of 19 October 2001 that the Scheme “will have an adverse impact on the City Council’s road hierarchy, which seeks to ensure that traffic is carried on the most appropriate roads and routes”.
- There is no doubt that, from the beginning, TfL, the Mayor’s advisors and the Mayor himself were acutely aware that the introduction of the Scheme will involve Boroughs in the exercise of their statutory functions as highway authorities by the execution of traffic management measures. There are several references in the TfL Report of which these are a sample:
“TfL considers that the traffic changes resulting from the proposed scheme would be manageable and would be implemented to effectively deal with any adverse impacts.”
“……a number of complementary measures are proposed. Examples of complementary measures include traffic reduction schemes, controlled parking zones, pedestrian schemes, cycle schemes and interchange schemes. Many of the schemes have been put forward by Boroughs and will be subject to local consultations…..Any final decision to proceed with schemes needed .…..will only be made when the congestion charging Scheme Order has been confirmed. Schemes involving repair and maintenance works to road surfaces and footways have been approved to ensure completion in advance of the charging scheme and to avoid disrupting the scheme operation.”
The Mayoral Approval Form of 18 February 2002 said:
“…..complementary traffic measures on borough roads, for example to deter rat-running, will need to be progressed by the Boroughs. TfL have worked with the Boroughs to identify these schemes, but TfL’s own power to progress them is limited to providing finance, which TfL are doing”
And in his Statement, the Mayor thanked “the various local authorities most affected for co-operating in devising traffic management measures to cater for the effects of congestion charging”. The TfL budget for financing such schemes is £100M. In fact, whereas other Boroughs have been co-operative and have been anxious to qualify for TfL finance, Westminster has not. A minute of 20 May 2002 records that the Council “has taken the view that to be seen to be working with TfL on such schemes would undermine its case against congestion charging”. That was after the commencement of these proceedings. Its attitude at an earlier stage (23 November 2001) was: “We would like all possible information but will not comment until the Mayor has published his decision”. This gives the impression of something of a stand off between Westminster and the Mayor. If that is right, the responsibility lies with Westminster.
- Against this background, can it be said that the Mayor failed to have regard to Westminster’s statutory responsibilities, in particular those arising under section 122? It is clear both from the advice he received and the terms of his Statement that the Mayor was well aware of the importance of the Boroughs in devising appropriate traffic management measures to complement the Scheme. Whether or not he had the precise words of section 122 in mind, I am sure that he knew where the demarcation of responsibility lay. If Westminster was anticipating or experiencing or was aware of any emerging problem in the discharge of its functions under section 122, one would have expected to see some specific mention of it in the contemporaneous documentation but there is none. One would have expected to see some specific reference to it in the Claim Form and the evidence and, in that case, the Mayor and his advisors would have had the opportunity to deal with it in evidence. If it is an inherent problem, one would have thought it likely that other Boroughs would have raised it but there is no evidence of that. In the course of his reply, Mr. Henderson paid particular attention to section 122(2)(a) and the securing of reasonable access to premises. When challenged by Mr. George to identify any mention in the papers of a concern about that he was unable to provide a convincing reference.
- The matters to which I have referred lead me to conclude that the section 122 argument is an unmeritorious artefact. Moreover, the unchallenged Mayor’s Strategy for Transport, with its commitment to the introduction of a congestion charge along the lines of the present Scheme, does impose certain obligations upon the Boroughs as regards implementation (Greater London Authority Act 1999, sections 141-153), with the Mayor being granted reserve powers of direction. There is a burden on Borough Councils to bring forward implementation plans in relation to the Strategy. It may well be that it is inappropriate to charge the Mayor with failing to have regard to the duties of a Borough under section 122 of the 1984 Act when the Borough, in relation to its section 122 functions is, as I see it, bound to have regard to the Mayor’s Strategy under section 144 of the 1999 Act. However, I prefer not to base my decision on the section 122 point primarily on an analysis of the relationship between the two statutes. In my judgment, the real point is that Westminster has not established a failure to have regard to its statutory functions under section 122. I am bound to say that if Westminster had persuaded me on this point and had succeeded in this case on that ground alone, I would not have been disposed to grant it any discretionary relief because I am satisfied that, in fact, Westminster has not encountered any difficulty in the discharge of its functions under section 122 as a result of the Mayor’s decision and there is no reason to believe that it will do so. The history as I have described it is material to that hypothetical conclusion. It follows from all that I have said about section 122 that, in my judgment, it does not live up to Mr. Henderson’s description of it as the eminence grise – it is closer to being a herring rouge.
(2) Air quality implications
- When the Mayor stated his reasons for confirming the Scheme he said:
“…..though the Scheme will make a marked contribution to reducing traffic congestion, I am satisfied that the Scheme is not likely to have significant environmental effects, whether positive or negative, and whether inside or outside the charging zone although a small overall air quality benefit is predicted.”
This is consistent with the advice he had received in the TfL Report, for example:
“There would be no material damage in air quality, either locally, outside or across the proposed charging zone; although it is considered there would be a small net reduction in the emission of key pollutants as a result of reduced traffic and congestion.”
These extracts are concerned with the overall position. It was of course recognised that traffic using the Inner Ring Road would increase – by about 10% - and it is obvious that any increase in traffic results in an increase in emissions in the area where the traffic increase occurs, although there is evidence before me that even on a “worst case” scenario the increased emissions would be 3% and the increased pollution only 1%. The complaints of Westminster are essentially these: (i) that it was not supplied with sufficient information in the consultation process to enable it to make appropriate representations, in particular because the material disclosed to the consultees omitted certain documents upon which they could and would have relied and they were therefore in receipt of a misleading picture; (ii) that the Mayor’s attention was not drawn to and he did not consider the impact on Westminster’s air quality responsibilities; and (iii) that relevant material was “screened” from the Mayor’s consideration by his officials (although, I repeat, there is no allegation of bad faith). I now deal with these complaints.
(i) Information supplied or not supplied to Westminster
- In the Stakeholder Pack, consultees were informed:
“…..the expected impact of the Scheme on local air quality, though positive, will be very small.”
A later, more detailed passage, stated
“…..it is not expected to have a measurable impact on overall air quality in London…..there may be local impacts arising directly from changes to traffic volumes and characteristics…..Overall and localised impacts on air quality are best addressed in terms of a detailed emissions modelling study, using in this case the large volumes of traffic flow data generated by the traffic monitoring……”
These passages drew on material which TfL had obtained from SEIPH and Professor Bernard Fisher but neither was specifically mentioned.
When Westminster provided its consultation responses, the most specific response was in an appendix to a letter dated 19 October 2001 which stated:
“congestion charging will do very little to achieve improvement in air quality.”
After the commencement of proceedings, Westminster became aware of other material which had been in the possession of TfL. In April 2001, TfL had received from Halcrow Fox, a firm of consultants, a report entitled Scoping Study on Congestion Charging – Need to EIA. It included this passage:
“…..for air quality the total impact…..is not the aggregate average result (which is meaningless in environmental legislation terms), but the sum of location specific impacts. On this basis, we suggest that CC would have a significant impact, but this varies between a benefit and a disbenefit by London region……the area immediately outside the IRR (and around it) sees a ‘location – dependent disbenefit…..”
In a summary of environmental impacts, it added:
“Air quality – the effects are likely to be significant…..the scope for mitigating effects is very limited. Therefore, air quality is likely to be the key issue determining whether an EIA is required.”
TfL also instructed Professor Fisher, an acknowledged expert. His report is dated 6 June 2001. It stated:
“It therefore turns out that the estimated changes in emissions of NOx and PM10 [these being the emissions which cause concern] in 2003 as a consequence of congestion charging are very small. There is an estimated decrease in Nox emissions of 3% within the charging area and an increase in Nox emissions of 3% along the Inner Ring Road. There is an estimated decrease in PM10 emissions of 1.5% within the charging area and an increase in PM10 emissions of 3% along the Inner Ring Road. The effect of these changes on the annual average concentration of Nox and PM10 are to small to be detectable by monitoring……
The modelling of the effect of congestion charging on NO2 and PM10 concentrations supports the general conclusion …..that there may be some small increases in concentration in very localised areas, with small decreases within the Inner Ring Road. The relative changes in annual average concentration are of order 1% and could not be detected by measurements. The changes brought about by road charging on air quality are therefore comparable with the year to year variability arising from other factors such as meteorology, the turnover of vehicles, the use of road vehicles of different types, the fraction of gross polluters, the transport demand and journeys made within London. The detailed modelling therefore supports the earlier general conclusion that the Congestion Charging Scheme and Air Quality Review and Assessment are two largely independent activities and their merits should be judged separately.”
- Those conclusions resulted from an analysis of the SEIPH modelling. There is a disagreement between Professor Fisher and Charles Buckingham (the TfL in-house air expert) on the one hand and Westminster’s in-house air experts on the other hand as to Professor Fisher’s approach and methodology. For one thing, the Westminster witnesses take the view that no or insufficient regard was had to the fact that Westminster is an Air Quality Management Area (as to which, see below). For another thing, they criticise a statement of Professor Fisher that
“it would be neither useful nor cost effective to spend a great deal of effort in measuring the detailed air quality impact everywhere in London of the Congestion Charging Scheme.”
The criticism is that that does not dispense with the need to make some local and short-term assessments in particular areas, a view which gains some support from Halcrow Fox. I should add that it is the view of Professor Fisher (and it has not been challenged) that the air modelling, the results of which informed the TfL Report, was comparable in detail with an EIA.
- In my judgment, it was open to TfL to take the view that, whatever alarm bells had been sounded by Halcrow Fox, they had been silenced by SEIPH and Professor Fisher. Experts may disagree, but TfL was entitled to conclude as it did on the air quality issue. Mr. Henderson submits that it was essential for the different views of experts to be assessed openly and transparently before the Mayor’s decision. This cannot be right (subject to grounds 2and 3, below). TfL did not have the views of the Westminster witnesses as they have been expressed in these proceedings at that stage, They had Halcrow Fox, SEIPH, Professor Fisher and their own in-house input. It was a permissible conclusion that the later contributions provided the answer to the earlier view in the Scoping Study. That being the case, then, in accordance with the Coughlan criteria and what was said by the Court of Appeal when applying them to the facts of that case, I can find no legal flaw in what was or was not supplied to Westminster. It is inappropriate to describe it as misleading. Moreover, nothing said on behalf of Westminster in the course of consultation on the Scheme required the disclosure of anything more. Westminster had enough from TfL by way of reasons and explanations to enable it to make an intelligent response.
(ii) The Mayor’s and Westminster’s air quality responsibilities
- Both the Mayor and Westminster have statutory responsibilities in relation to air quality. So far as the Mayor is concerned, I have referred elsewhere to the power of the GLA to do anything which it considers will further one or more of its principal purposes which include “promoting the improvement of the environment of Greater London” (section 30(2) of the 1999 Act). It has to have regard to the effect which any proposed exercise of power would have on “the health of persons in Greater London” (section 30(4)). The Mayor is required (section 362) to publish the London Air Quality Strategy, containing amongst other things his proposals and policies for the implementation of the policies contained in the National Air Quality Strategy (Environment Act 1995, section 80) and for the achievement of prescribed air quality standards and objectives. In the preparation of the London Air Quality Strategy, the Mayor must have regard to reviews and assessments of air quality made by local authorities in Greater London and to any designation by a such a local authority of an air quality management area (AQMA) pursuant to section 83 of the 1995 Act (section 362(4) of the 1999 Act). Section 83(1) of the 1995 Act requires a local authority to designate as an AQMA any part of its area in which it appears that any air quality standards or objectives are not being achieved. Westminster is a designated AQMA. The Mayor has published a draft London Air Quality Strategy but it is not yet in final form.
- The case for Westminster is that (a) Westminster’s air quality strategy and designation as an AQMA were not referred to in any advice to the Mayor and he did not take them into account (this is conceded on behalf of the Mayor); and (b) there was a lack of adequate information to consultees about air quality matters and this prejudiced Westminster’s ability to carry out its own functions and duties under the Environment Act, including the carrying out of its own air quality assessment of the impact of the scheme on its air management policies.
- There is good reason to approach this aspect of the case with scepticism. Although it loomed large in submissions, Westminster’s consultation responses in relation to it were, to say the least, laconic. It seems to me that, in the light of what I have held in the previous section of this judgment about the permissibility of TfL’s views concerning the likely impact of the Scheme on air pollution, they and the Mayor were entitled to take the position which they do in relation to Westminster’s and the Mayor’s respective statutory duties in relation to air management policies. The Mayor was under no statutory duty to have regard to Westminster’s air quality strategy or the fact that it is an AQMA. There is evidence that TfL officers were aware of Westminster’s strategy and concluded that it was not contravened or undermined. This was permissible. Indeed a subsequent document, prepared by GLA officers in the course of these proceedings, seeks to illustrate the compatibility of the Scheme and Westminster’s air quality strategy. Although Westminster’s in-house expert, Dr. Penny, states that he does not accept the comparison, it is not a reasoned rejection. The Mayor did have his attention drawn to his own draft London Air Quality Strategy. His decision is consonant with his having properly considered what he was properly told about it.
- I do not find any valid criticism under this sub-heading. The factual and statutory matrix is a familiar one for decision-makers. A person or body with a number of different responsibilities will often be in a position where steps taken pursuant to the discharge of one responsibility may affect another of his responsibilities or the responsibilities of someone else. If, as here, he is permissibly advised that such consequential effects will be insignificant, he cannot be criticised for acting on that advice. To be constantly deterred from action in one area because of potential but insignificant consequences in another would be to succumb to stultification.
- Although this point is a central feature of Westminster’s case, I can deal with it relatively briefly in view of what I have already said. It is accepted on behalf of the Mayor that he was not provided with copies of or expressly referred to the Halcrow Fox Scoping Study, a subsequent Halcrow Fox draft Voluntary Environmental Assessment Report, the SEIPH air modelling information or the report of Professor Fisher. It is suggested that he ought to have been provided with this material and that, if he had been, and had thereafter taken it into account he or a reasonable decision-maker would or might have reached a different conclusion. So far as the SEIPH information and Professor Fisher’s report are concerned, it seems to me that this submission does not get off the ground. It is abundantly clear that in a very real sense they informed the TfL Report and the Mayor’s decision. Henry Abraham’s fourth witness statement explains this and I wholly accept it. Halcrow Fox’s Voluntary Assessment was more concerned with visual impacts, to which I shall shortly return. For present purposes, it is the Halcrow Fox Scoping Study that is the important document.
- The case for the Mayor is that that document came into being without the benefit of any air modelling and that the work of SEIPH and Professor Fisher was precisely what was envisaged by Halcrow Fox. After SEIPH and Professor Fisher, the TfL officials concluded that the early concerns of Halcrow Fox were no longer justified. In my judgment, that was a permissible conclusion.
- Quite apart from that factual analysis, there is a point of principle in play here. Mr. Abraham states that it would be “impractical” and out of line with widespread local authority practice for officers always to copy or to provide a summary of all reports and advice to the ultimate decision-maker. It is for the officers to make a judgment. I have no doubt that this is correct and that it is not limited to local authorities. We are here dealing with highly qualified and experienced officials. There would be little point in employing them if they were to be mere conduits. In a case in which, at the time of the giving of advice, the available material manifests two or more schools of thought, then it would be the duty of officials to make that clear to the decision-maker, coupling that communication with whatever advice was appropriate. However, that is not this case. The advisors were entitled to adjudge that what Halcrow Fox had originally said had been overtaken by events and to present the material to the Mayor accordingly. It is also worth observing that, by the time of the TfL Report, the traffic modelling had produced a reduction in the predicted traffic flows. Mr. Abraham and his colleagues were entitled to take this into account (as they did) when deciding what should or should not go to the Mayor. A reduction in traffic flows produces a reduction in emissions.
- I therefore find that there is nothing in the “screening” point which,I emphasise, was advanced entirely on the basis of good faith all round.
(3) Visual impacts of signs and cameras
- Similar submissions were made on behalf of Westminster under this heading, although a prior point was advanced by Mr. George on behalf of the Mayor. It is a simple one: what the Mayor confirmed was the Scheme Order and that is the decision that is under challenge. There is not a word in the Scheme Order about the visual impacts of signs and cameras or indeed about signs and cameras at all. In these circumstances, submits Mr. George, it does not lie in the mouth of Westminster to challenge the decision by reference to alleged deficiencies of information and consultation in relation to matters outwith the confirmation. In my judgment, this point is well made and deals a knock out blow to Westminster’s case on signs and cameras.
- However, even if I were wrong about that, I would not consider that Westminster has a sustainable case on signs and cameras. The case emphasises Westminster’s cultural heritage – 11,000 listed buildings, 53 conservation areas and a world heritage site – and invokes the potential of an influx of signs and cameras to damage this heritage. In the Halcrow Fox Environmental Assessment, attention was drawn to this, with the comment:
“It is this process which is so destructive of the quality of urban fabric. At its worst, congestion charging could result in the loss of many important trees and an intermittent incoherent imposition of paint and unattractive signs and camera installations. At its best it could be a positive benefit visually.”
Mr Henderson submits that it is therefore essential to provide detailed information to those who are likely to have a significant input into the decision-making process and to carry out a proper programme of consultation. However, TfL and/or the Mayor failed to provide enough information to enable meaningful representations to be made.
- Mr. George makes a number of submissions in response to this. Once again, time did not stand still. After Halcrow Fox had expressed those views in June 2001, discussions proceeded between TfL and interested parties including the Boroughs and English Heritage. In fact, Westminster was conspicuous by its absence from these developments. It made no reference to these matters in its consultation responses, nor did it respond when TfL sent it information on sign design and boundary point locations within Westminster. Prior to the issue of these proceedings it was an issue that failed to capture the imagination of the Westminster officials, even when installation work began.
- I consider that Mr. George is correct. The evidence comes nowwhere near establishing that there was a failure to consult on these matters or a failure to inform so as to enable appropriate representations to be made. It is a subject upon which Westminster remained largely silent prior to the Mayor’s decision. In due course, the Mayor was provided with appropriate advice and material. In his Statement, he said:
“Initially there was concern regarding the visual effects of signing and cameras, particularly in architectural or historic area. I have looked carefully at what is now proposed, which is generally a matter of relatively small traffic signs and modest cameras, rather than gantries such as some have supposed.”
As it happens the final decision on the design of the signs lies not with the Mayor but with the Department of Transport. I am told that it is imminent.
Ground 2: No Environmental Impact Assessment
- It is common ground that the implementation of the Scheme would have some adverse impact. The TfL Report states:
“TfL accepts that the impacts of the proposed scheme, while projected to be generally beneficial, would have some adverse effects on certain individuals and organisations and in some locations.”
For example, TfL predicts an increase of 8 to 9% in orbital traffic flows on the Inner Ring Road. It is unnecessary for me to rehearse all the evidence on environmental impacts. In the course of the consultative process, consideration was given to the question whether an Environmental Impact Assessment (EIA) was required under either English Law or Community Law. The Mayor was advised by TfL that there were no such requirements. The written advice of leading and junior counsel was annexed to a Mayoral Approval Form. He was also made aware that some consultees were calling for an EIA to be carried out on a voluntary, i.e. non-statutory basis. The Mayor decided not to carry out an EIA. The relevant part of his statement reads as follows:
“I am satisfied that the Scheme is not likely to have significant environmental effects, whether positive or negative, and whether inside or outside the charging zone, although a small overall air quality benefit is predicted. I have reached my own view having regard to all the information before me and to the specific matters set out in the European Directive on Environmental Impact Assessment. The TfL and GLA officers have all reached the same conclusion. I have considered carefully their advice and reasoning on whether there are likely to be significant environmental effects, and I agree with it…..I am satisfied that this traffic management scheme, for that is what it is, is not likely to have significant environmental effects. Second, and in any event, the legal advice that I have received is that the scheme is not one to which either the relevant domestic regulations or the European Directive itself applies. Third, just as I consider that I can reach a decision whether or not to confirm the Order without further information on other matters, so too I see no need to call for a voluntary Environmental Impact Assessment. I appreciate that this decision will disappoint those who have regarded a voluntary Environmental Impact Assessment as an alternative to calling a public inquiry.”
- The written and oral submissions on this part of the case range far and wide. It seems to me that the relevant issues arise in this order: (1) was an EIA required under the domestic secondary legislation? (2) if not, was one nevertheless required under the Directive, on the basis of domestic law not having given full effect to it? (3) if (but only if) (1) and (2) are answered in the negative, is the Mayor’s decision not to call for a voluntary EIA challengeable by reference to public law criteria? Mr. George raises a fourth issue which can only arise if the answer to (1) or (2) is in the affirmative, namely: even though, on analysis, an EIA may have been required under domestic or European Law, was the Mayor justified in deciding that it was not? I shall first deal with the issues I have enumerated as (1), (2) and (3).
(1) The domestic secondary legislation
- Although there is a raft of domestic legislation the purpose of which is to give effect to Council Directive 85/337/EEC (as amended) the only instrument on which Mr. Henderson sought to rely is the Town and Country Planning (Environmental Assessment) Regulations 1999. This submission does not get off the ground. The Regulations only require an EIA in the context of a grant of planning permission. The Scheme is not and is not required to be the subject of a grant of planning application. Accordingly, the Regulations do not apply in this case. In the end, this was conceded by Mr. Henderson.
(2) Council Directive 85/337/EEC (as amended)
- The case for Westminster is that, if the domestic Regulations do not apply, then there has been a failure to give full effect to the requirements of the Directive and, in these circumstances, the Directive has direct effect and can be relied upon by Westminster. This point is not adopted in the Kennington case. Mr. Henderson puts the case for Westminster in this way.
Article 1(1) of the Directive provides that the Directive
“shall apply to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment.”
The first question, therefore, is whether the Scheme is a “project” within the meaning of the Directive. By Article 1(2), “project” means:
“- the execution of construction works or of other installations or schemes, - other interventions in the natural surroundings and landscape, including those involving the extraction of mineral resources.”
Drawing on the word “other” in the second limb, Mr. Henderson submits that the construction works, other installations or schemes in the first limb must also be “interventions in the natural surroundings and landscape”. Moreover, (and uncontroversially), “landscape” embraces “townscape”. He then submits that the Scheme involves the execution of “installations” (cameras, signs etc), some “construction works” and a “scheme”, each of which involve intervention in the townscape of London.
- The next stage of the argument concerns the scope and effect of the Directive. Article 2(1) provides:
“Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 4.”
Article 4 brings in Annexes I and II. Annex I contains a list of specific projects which will always require an EIA. They are major developments and it is common ground that they do not embrace the present case. Mr. Henderson therefore focuses on Article 4(2) and Annex II. Article 4(2) provides:
“…..for projects listed in Annex II, the Member States shall determine through
(a) a case – by – case examination, or
(b) thresholds or criteria set by the Member State
whether the project shall be made subject to an assessment…..”
Annex II is a lengthy catalogue which embraces 13 categories of projects. The submission seeks to invoke the tenth category which is headed “Infrastructure projects”, and, in particular,
“(b) Urban development projects, including the construction of shopping centres and car parks.”
It is pointed out that the words “including the construction of shopping centres and car parks” were added by amendment in 1997 and it is contended that that was done in order to enlarge rather than narrow the sub-category.
- The final part of the Directive referred to by Mr. Henderson is Recital 6 which provides that consent for public and private projects which are likely to have significant effects on the environment should only be granted after prior assessment of the likely significant environmental effects.
- On the basis of this journey through the Directive it is submitted that (i) the Scheme is a “project”; (ii) it is an “urban development project”; (iii) it is likely to have significant effects on the environment; and (iv) it falls within Article 4(2). In short, it is an Annex II project for which, under the Directive, an EIA is required before consent or approval or confirmation can lawfully be granted.
- Mr. George’s primary response to all this is that (i) the Scheme is not a “project”; (ii) alternatively, it is not an “urban development project”, and (iii) in any event, it was for the Mayor to form his own conclusion as to whether or not it was an "“urban development project”.
- Westminster did not raise the Directive during the consultation process. Indeed, it seems that only RBKC did. It is interesting to observe that the question was raised in Parliament on 4 March 2002. It elicited the following answer from the Minister of Transport, Mr. John Speller MP (Hansard, 5 March 2002, 187W):
“The proposed London congestion charging scheme does not fall within the scope of Directive 85/337/EEC (as amended by Directive 97/11/EC) on the assessment of the effects of certain public and private projects on the environment.”
Of course, that answer is not binding on the Court. I shall attempt to approach the matter in stages.
(i) Is the Scheme a “project” within the meaning of Article 1(2)?
- I have described how Mr. Henderson seeks to approach this question. Mr. George submits that what the Order provides for is, in essence, a traffic management scheme and not a “project” in the Directive sense. The only physical products of the Scheme are the cameras, the signs and certain road-markings. They either do not require planning permission under English Law or they are the subject of deemed permission. Moreover, the cameras and the signs are not dealt with in the confirmed Order in any event – a submission which I considered under Ground 1. Strictly speaking, the confirmation of the Order had nothing to do with development in the planning sense.
- If Article 1(2) stood alone as the sole criterion for the application of the Directive, there might be some difficulty in holding that the Scheme is not a “project”. However, the real problems arise at the next stage.
(ii) Is the Scheme an “urban development project” within the meaning of Annex II?
- The Directive is concerned with projects “which are likely to have significant effects on the environment” (Article 1(1)). These projects are then defined via (in this case) Article 4(2), which leads to Annex II. It is true, as Mr. Henderson observes, that not all the items in Annex II require building works – for example “storage of scrap iron, including scrap vehicles” in category 11(e). But can it be said that this congestion charging scheme is an “urban development project”?
- When the Directive was transposed into English law by the 1999 Regulations, category 10(b) was expressed as
“Urban development projects, including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas.”
Of these three additional examples, Mr. Henderson repeats his submission about enlargement rather than restriction and, of course, the terms of the domestic Regulations cannot be determinative of the construction of the Directive. He also points to the requirement of a purposive construction in cases of doubt: Aannemersbedriif P K Kraaijeeveld BV v. Gedepuuterde Staten van Zuid-Holland  All ER (EC) 134, paragraph 21 (Advocate General Elmer) and paragraph 39 (Judgment).
- Counsel on both sides pray in aid different parts of the Preamble to the Directive as aids to construction. Mr. Henderson emphasises:
“whereas development consent for….projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects….has been carried out…., whereas the effects of a project on the environment must be assessed in order to take account of concerns to protect human health, to contribute by means of a better environment to the quality of life, to ensure maintenance of the diversity of species and to maintain the reproductive capacity of the ecosystem as a basic resource for life. ”
For his part, Mr George refers to:
“whereas general principles for the assessment of environmental effects should be introduced with a view to supplementing and co-ordinating development consent procedures governing public and private projects likely to have a major effect on the environment.”
(Mr. George’s emphasis).
- I have to say that, save on the issue of the purpose of the Directive (which is self-evident anyway), I do not find these recitals to be helpful as to the meaning of “urban development project”.
- In my judgment, it would strain the words of the Directive beyond a purposive construction to hold that “urban development project”, in the precise context in which they appear, embrace this Scheme which is, as Mr. George submits, essentially a traffic management scheme. I am disposed to the view that, in general, “urban development project” connotes rather more in the nature of building or construction. Although it is not decisive of the matter, it is comforting to observe that the introduction of the Rome Traffic Limitation Zone was not preceded by an EIA and no example has been forthcoming of any cognate measure which has been.
(iii) The respective roles of the Mayor and the Court
- However, the matter does not stop there. What is in dispute is this particular Scheme. As it is not an Annex I project, for which an EIA would be mandatory (Article 4(1)), it is a matter for national determination “on a case-by-case examination” whether a particular “urban development project” should be made the subject of an EIA (Article 4(2)) and, in this regard, account is to be taken of the criteria set out in Annex III (Article 4(3)), which include the size of the project, pollution and nuisances, location and other matters. Thus, it is not required that every urban development project be the subject of an EIA. It follows that, if I am wrong about the inapplicability of the words “urban development project” to this Scheme, the question would become: is an EIA required for this particular urban development project? It is common ground that, in the first place, that is a question for determination by the Mayor. However, Mr. Henderson submits that the Mayor fell into legal error in his determination.
- It is appropriate for me to refer to some of the authorities. In R v. Swale Borough Council, ex parte RSPB  1 PLR 6, Simon Brown J said (p.16):
“The decision whether any particular development was or was not within the scheduled description [of the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988] is exclusively for the planning authority in question, subject only to Wednesbury challenge. Questions of classification are essentially questions of fact and degree, not of law…..Even less am I persuaded that this court is entitled upon judicial review to act effectively as an appeal court and to reach its own decision so as to ensure that our EC treaty obligations are properly discharged. ”
Mr. Henderson submits that this is no longer good law, but I note that it was followed recently by Sullivan J in R (on the application of Malster) v. Ipswich Borough Council  EWHC Admin 711. This brings me to Berkeley v. Secretary of State for the Environment  2 AC 603 HL and, in particular, the following passage in the speech of Lord Hoffman (p 615):
“If no reasonable Secretary of State could have considered that the …..application [for planning permission] was a Schedule 2 application, the judge would of course have been entitled to rule that no EIA could have been required. But [counsel] does not so contend. It is arguable that the development was an ‘urban development project’ within paragraph 10(b)….and the conflicting evidence on the potential effect on the river is enough in itself to show that it was arguably likely to have significant effects on the environment. In those circumstances, individuals affected by the development had a directly enforceable right to have the need for an EIA considered before the grant of planning permission by the Secretary of State and not afterwards by a judge.”
Mr. Henderson and Mr. George each claim this as their territory. What, then, is the legal principle? One of the features of Berkeley is that the decision-maker, the Secretary of State, had simply not applied his mind to the question whether the development was or might be an “urban development project” and therefore potentially required an EIA for that reason. The final sentence in the above extract makes it clear that that was the legal error – to the point that it would be inappropriate for the Court to decide the question in his stead. In my judgment, this serves to underline the proposition that, except in a case where no reasonable decision-maker could come to a different decision, the Court will defer in the first instance to the decision-maker, whose decision will only be challengeable on Wednesbury grounds.
- It is now clear that the assessment of likely significant effects by the decision-maker involves the assessment of both negative and positive environmental effects: see British Telecommunications PLC v. Gloucester City Council  EWHC Admin 1001, paras 64-70. Mr. Henderson places reliance on that case as a recent example of a decision being quashed because the decision-maker had made a Wednesbury unreasonable decision and had applied the wrong test. He submits that the same applies in the present case. He further submits that the Mayor misdirected himself in that (a) he failed to consider whether the Scheme would have positive effects and confined himself to adverse effects; (b) he then ignored the adverse effects on the ground that the Scheme, taken as a whole, is environmentally beneficial; and (c) he concluded that adverse visual impacts would not be significant because of measures to be taken to mitigate them. In addition, Mr. Henderson repeats his criticism of the decision being flawed by reason of the non-disclosure to the Mayor of the conclusions of the Halcrow Fox Scoping Study and Professor Fisher’s report.
- The correctness or otherwise of these submissions must first be assessed by a scrutiny of the Mayor’s Statement and the material then before him. The advice contained in the Mayoral Approval Form of 18 February 2002 was:
“GLA officers emphasise that it is for the Mayor himself to reach a conclusion on whether the environmental effects of the Scheme (adverse or otherwise) are likely to be significant, having due regard to the information on the Scheme which is before him, the criteria in Annex III of the relevant European Directive which are set out in Appendix B, and the advice from TfL.”
The advice from TfL was that significant environmental effects are unlikely but that an overall reduction in traffic “will have beneficial effects on the physical and living environment”. The Mayor’s Statement included these passages:
“…..though the Scheme will make a marked contribution to reducing traffic congestion, I am satisfied that the Scheme is not likely to have significant environmental effects, whether positive or negative, and whether inside or outside the charging zone, although a small overall air quality benefit is predicted.”
“I am satisfied that there are not likely to be any significant environmental effects from traffic and that in terms of noise and atmosphere pollution any negative impacts will be small.”
“…..this traffic management scheme….is not likely to have significant environmental effects.”
He also referred to the legal advice that the Scheme is not one to which the Directive applies.
- On the face of it, these passages render Mr. Henderson’s submissions unsustainable. Nor is life breathed into the challenge by the complaint about the material that was or was not before the Mayor. I have already explained my rejection of this complaint when considering Ground 1. This is not a Berkeley type case where the appropriate question had not been addressed by the Secretary of State, nor is it akin to British Telecommunications, in which the issues had been addressed, but in a palpably irrational decision. In my judgment, the decision of the Mayor not to call for an EIA, embracing as it did a conclusion that Article 4(2) did not bite because of a lack of significant environmental effects, is not susceptible to challenge on the basis of irrationality, misdirection or otherwise. In line with the authorities, he was entitled to conclude that, in circumstances of this case, an EIA was not required by the Directive.
(iv) Is the Directive enforceable at the suit of a local authority?
- This would have been a point of some importance if my conclusions about the Directive had been in favour of Westminster. It is contended on behalf of the Mayor that, even then, Westminster lacks the legal standing to make good a challenge based on the direct effect of the Directive. This is on the basis that Westminster, as a local authority, is itself an emanation of the state and the benefit of the effect of a directive only accrues to “individuals”.
- It is certainly the case that the language used by the Court of Justice and in the English courts in cases where direct effect is under consideration is invariably in terms of “individuals”. An example is in the extract from the speech of Lord Hoffman in Berkeley which I quoted earlier. Mr. George submits that the word is throughout being used as a term of art which excludes public authorities. He traces the development of the law by reference to well-known authorities such as Marshall v. Southampton Health Authority  1 QB 401 (per Advocate General Slynn at p.412). In Fratelli Constanzo v. Commune di Milano  ECR 1939 the Court of Justice said (para 31)
“It follows that when the conditions under which the Court has held that individuals may rely on the provisions of a directive before the national courts are met, all organs of the administration, including decentralised authorities such as municipalities, are obliged to apply those provisions.”
- This line of authority was considered by the Court of Appeal in R v. Durham County Council, ex parte Huddleston  1 WLR 1484 Sedley LJ said (para 25):
“As the European Court of Justice cases show, the failure of the state to transpose a Directive inevitably renders the state itself impotent to implement it; but for an individual with a recognised interest in proper implementation, it is precisely the state’s failure which disables it from taking refuge in its own wrongdoing; and it is this which in turn entitles the citizen…..to assert rights conferred by the Directive either as a sword or as a shield against the state, though not directly against another individual …..It is to prevent the state, when asked by a citizen to give effect to the unambiguous requirements of a Directive, from taking refuge in its neglect to transpose them into national law.”
- Of course, there is no question of any “wrongdoing” or “neglect” on the part of Westminster in relation to transposition. Only the State through its central organs can legislate in that way. However, the authorities illustrate how an “innocent” local authority can be fixed with liability by “an individual with a recognised interest in proper implementation”. Mr. George’s submission is that Westminster is not such a person. He submits that the only route open to a local authority is to make representations to central government to extend the implementation. As it happens, that is precisely what RBKC sought to do in the present case.
- Mr. Henderson concedes that he can find no examples of a public authority resorting to the doctrine of direct effect so as to overcome the non-implementation or incomplete implementation of a directive. He submits that if such a course were unavailable it would be to tolerate an unwarranted gap in the proper implementation of directives and that the Court ought not to allow that. He refers to Commission v. Germany  ECR I 2189 but that, it seems to me, is concerned only with enforcement by the Commission, which is a power or duty arising under the Treaty. He also submits that Westminster, although a local authority, is also an employer, a property owner and, in general, the owner of private rights. However, it is not such private rights that it is seeking to enforce in these proceedings. That brings me to his primary submission on this issue which is that Westminster has standing by reference to section 222 of the Local Government Act 1972, which provides:
“(1) Where a local authority consider it expedient for the promotion of the interests of the inhabitants of their area –
(a) they may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings, may institute them in their own name…..”
Does this cover the present case? In my judgment it does not. Moreover, the procedural and substantive scope of the doctrine of direct effect is a matter not for national legislation but for Community law, which has been declared in the line of authorities to which I have referred. It is my task to interpret it. I conclude that the language used in the Court of Justice and in the English cases – “individuals”, “citizens”, “a recognised interest in implementation” – is deliberate. It does not extend to public authorities.
(3) A voluntary EIA
- Westminster’s fallback position (and one supported by the Kennington Residents) is that even if the Mayor was justified in concluding that an EIA was not required under the domestic Regulations or under the Directive, he ought nevertheless to have commissioned one on a voluntary basis in the particular circumstances of this case and he erred in law by not doing so.
- The possibility of a voluntary EIA was in the minds of the Mayor’s advisors. Thus in the Mayoral Approval Form of 18 February 2002, it was stated:
“It is open to the Mayor to require the preparation of a voluntary [EIA]. GLA officers see no reason to differ from the conclusion in the TfL report that significant environmental effects are unlikely. So far as the suggestion that the Mayor should request the preparation of a voluntary [EIA], officers consider that if the Mayor forms the view that the anticipated environmental effects will be very limited, the benefits to be obtained by requesting a voluntary EIA would be relatively small and would not outweigh the disadvantages which would arise from the inevitable resultant delay.”
The Head of Law also advised the Mayor that he should take the possibility of a voluntary EIA into account and that several objectors were asking for one.
- I have already referred to what the Mayor said in his Statement when concluding that an EIA was not mandatory under the Directive and added:
“…..just as I consider that I can reach a decision whether or not to confirm the Order without further information on other matters, so too I see no need to call for a voluntary [EIA]. I appreciate that this decision will disappoint those who have regarded a voluntary [EIA] as an alternative to calling a Public Inquiry.”
- The case for Westminster is that in deciding not to commission a voluntary EIA the Mayor did not consider all that which ought to have been considered (as to which Mr. Henderson seeks to rely not only on the material which was before the Mayor but also the material which was not, in particular the Halcrow Fox Scoping Study which included a “strong recommendation that a voluntary EA is undertaken by TfL…..focusing on the environmental impacts covered by the Mayor’s strategies”). Alternatively, it is submitted that the Mayor’s decision was not one which any reasonable Mayor could have taken. Mr. Henderson draws attention to section 30(2)(c) of the Greater London Authority Act which prescribes one of the three principal purposes of the GLA as “promoting the improvement of the environment in Greater London” and to section 30(5) which provides that it shall exercise its statutory power “in the way which it considers best calculated …..to promote improvements in the health of persons in Greater London and…..to contribute towards the achievement of sustainable development in the United Kingdom”. Moreover, in the Mayor’s Draft Air Quality Strategy reference is made to EIAs, including on a voluntary basis, where air quality is considered a significant issue, “e.g. where the development will result in increased vehicle movements or substantially alter the highways network”.
- I am entirely satisfied that the decision of the Mayor not to commission a voluntary EIA is unassailable. I do not propose to rehearse my conclusions in relation to ground 1 where I dealt with the Halcrow Fox Scoping Study and related matters, although I do repeat the evidence of Professor Fisher that the air modelling in this case was comparable with that to be expected in an EIA. It was permissible for TfL Report to express the view that
“the information now available is sufficient for a decision to be made by the Mayor….without the need for further studies or the holding of a public inquiry.”
This view was augmented in the advice from senior officers in the Mayoral Approval Forms to which I have referred. All this led the Mayor to a permissible conclusion that, significant environmental effects being unlikely, there was no need for a voluntary EIA. That decision satisfied all public law criteria.
Ground 3: the refusal to hold a Public Inquiry
- In its consultation response of 19 October 2001, Westminster raised the question of a Public Inquiry in these terms:
“The City Council and others still have a number of serious concerns over the Mayor’s proposals. If the Mayor is not willing to withdraw his proposals, the Council believes as a matter of natural justice that a Public Inquiry into the scheme should be held. The concerns over the way the consultation has been carried out and the absence of adequate supporting detail add to the case for an Inquiry. The Council considers it imperative that a Public Inquiry into both the principle and the detail of the….scheme proposals, to be conducted by an independent person appointed by the Mayor, should be held if the mayor does not agree that the proposals should be withdrawn. ”
It is apparent that Westminster was not alone in seeking a Public Inquiry. Schedule 23 to the Greater London Authority Act 1999 provides:
“….the Authority may
(d) hold an inquiry, or cause an inquiry to be held, for the purposes of any order containing a charging scheme.”
That discretion is exercisable on behalf of the Authority by the Mayor (paragraph 2).
- The TfL Report devoted a whole chapter to the question of whether or not the Mayor should cause an Inquiry to be held, making it clear that, ultimately, it was a matter for the Mayor himself to decide. It identified 14 issues which were relevant to the decision and addressed each of them in turn, It saw as the key issue:
“…..whether ……the Mayor is able properly to weigh the conflicting issues and properly take into account representations made for, and more particularly against, confirming the Scheme Order without holding an inquiry.”
The view of TfL was that the Mayor was so able, but it emphasised the need to obtain legal advice. Shortly afterwards, the Joint Advice of Leading and Junior Counsel was obtained. It was that
“there are no matters which compel the Mayor as a matter of law to hold a Public Inquiry. His discretion is wide enough for him lawfully to decide to hold, or not to hold, a Public Inquiry,”
and that the discretion should be exercised in the light of the issues identified by the TfL Report. The Advice is dated 15 February 2002. On 18 February the Mayoral Approval Form, signed by the Authority’s Head of Law, was issued. It contained a summary of the Joint Advice and advised the Mayor to approach the decision even-handedly and without giving undue weight to the cost and delay “which would be inevitable consequences of holding a Public Inquiry”.
- In the Mayor’s Statement, he explained his decision against the holding of a Public Inquiry at some length, including these passages:
“I accept that there could be some benefit from a Public Inquiry in terms of the production of further information, subjecting the views of TfL and others to cross-examination, and the overall appraisal which an independent inspector would provide. On the other hand, TfL themselves have, as I would have expected, done a great deal of work since last July in refining the traffic modelling and analysing the scheme impacts – work which will continue up to and beyond the introduction of congestion charging. The extensive public consultation has been highly effective in identifying individual areas of concern – for instance about the effects in particular localities or upon particular persons or interest groups – and has brought forward numerous suggestions for changes to the scheme. This has assisted my own understanding of how the scheme is likely to work and who will be affected by it, and in what ways…..
To hold a Public Inquiry would reassure objectors, but would in some ways be merely the easy option of deferring a decision in a situation where positive and prompt action is called for……I have been advised……to focus on whether I now have sufficient information to be able to balance fairly the arguments for and against TfL’s Order and come to a decision in relation to it. On balance – and I recognise that there is a perfectly respectable case for holding a Public Inquiry – I have decided against doing so. I am satisfied that the issues raised are sufficiently clear to me, that I have sufficient information about the scheme and its impacts, and that I am able fairly and properly to assess the information and weigh conflicting views without holding a Public Inquiry.”
- Westminster and the Kennington Residents challenge this part of the decision and its reasoning by reference to the positions at Common Law and under Article 6(1) of the ECHR. It is appropriate to consider these positions separately.
(1) At Common Law
- It is acknowledged that Schedule 23, paragraph 4(3), confers upon the Mayor a discretionary area of judgment of considerable width. Nevertheless, Mr. Henderson submits that there were compelling factors which ought to have led any open-minded Mayor to require the holding of a Public Inquiry. In his Skeleton Argument, he itemised those factors thus: (a) there has been no prior experience of such a scheme in this country (except for a small scheme in Durham); (b) there has been no public or other inquiry into the making of such a scheme; (c) there has been no consultation on the principle; (d) there has been no EIA; (e) there has been no qualitative testing of asserted or anticipated benefits or disbenefits such as could arise in a Public Inquiry; (f) traffic modelling was not up-to-date or comprehensive; (g) the increase of traffic on orbital routes and attendant human, physical and environmental impacts called for detailed independent study of high quality, such as would only be ensured by testing in a Public Inquiry; (h) a Public Inquiry would inevitably lead to an improvement of the Scheme, if its benefits outweighed its disbenefits.
- He further submits that the Mayor was wrong to equate consultation with a Public Inquiry and that the Court should look closely at the quality and quantity of the information and advice available to the Mayor. He incorporates into this submission his critique of the consultation process which I considered in relation to Ground 1. He also contends that the case for a Public Inquiry is enhanced where, as here, the decision-maker is an enthusiastic proposer of congestion charging in circumstances where there is extensive opposition to the Scheme in its details.
- Finally, Mr. Henderson draws attention to this passage in the TfL Report:
“……it is possible that the recommendation of an inquiry might be to abandon the proposals altogether or to make significant modifications to the proposed Scheme Order, or to delay them ”
and to the passage in the Mayor’s Statement where he referred to a Public Inquiry as being in some ways “merely the easy option of deferring a decision in a situation where positive and prompt action is called for (and expected by those very many Londoners who have repeatedly expressed support for congestion charging)”. He suggests that the former passage is an acknowledgement that a rational, independent judgment might favour the abandonment of the Scheme and the latter passage implies that the Mayor has made up his mind that he would reach the same decision on the Scheme, regardless of the outcome of a Public Inquiry.
- The case for the Mayor in answer to these various submissions can be summarised as follows: (a) the 8 “compelling factors” itemised by Mr. Henderson were taken into account by the Mayor or, in the case of one point of detail, have no relevance; (b) in the light of the TfL report, the Joint Advice, the Mayoral Approval Forms and the reasoning in the Mayor’s Statement, it cannot be argued that the Mayor misdirected himself or acted irrationally; and (3) the information available to the Mayor was adequate.
- There has been some debate before me as to the available common law grounds for challenging a decision not to cause a Public Inquiry to be held. Mr. George relies on the judgment of Potts J. in R. v. Secretary of State, ex parte Greenpeace  4 All ER 352 where he stated (p.383):
“Parliament……gave the Secretary of State a discretion as to whether or not to hold a public inquiry. Provided the Secretary of State applied his mind genuinely and rationally to the issue of whether or not to hold a public inquiry, his decision cannot be impugned. ”
Mr. George submits that this means that at common law the only ground of challenge is irrationality. It seems to me that it is safer to set the test by reference to Wednesbury in the round rather than simply “irrationality”.
- It is apparent to me that in the TfL Report, the Mayoral Approval forms and their enclosures (including the Joint Advice), the question of whether a Public Inquiry should be held was considered very carefully indeed by the Mayor’s senior advisors and that, in his turn, the Mayor also approached the question with similar care. I can find no evidence that he failed to consider anything that he ought to have considered or that he took into account anything that he ought not to have taken into account. Mr. Henderson’s eight “compelling factors” were, as Mr. George submits, taken into account. For reasons akin to those expressed in relation to the same aspect of Ground 1 (above), I do not consider that the information in the hands of the Mayor was qualitatively or quantitatively deficient. Moreover, the Mayor and his advisors were undoubtedly aware of his personal position as an enthusiastic proponent of the Scheme. It is important not to lose sight of the fact that when the Mayor’s Transport Strategy was published in July 2001 it included a commitment to the introduction of a congestion charging scheme substantially along the lines of what has now been confirmed and that that commitment came after an earlier period of consultation. There was no legal challenge to the Strategy . In these circumstances, the Mayor, though under a duty to consider the Public Inquiry issue fairly and even-handedly, was doing so in the context of the established, unchallenged Strategy. That does not mean that he was rendered incapable of giving proper consideration to the question of whether at this later stage, he should cause a Public Inquiry to be held.
- Mr. Henderson lays great emphasis on the passage in the TfL Report which acknowledged the possibility that a Public Inquiry might result in findings and recommendations adverse to the Scheme. That passage, in my judgment, is neither sinister nor naïve in its candour. It has to be read in conjunction with what follows a few lines later, namely the expression of the opinion that, in the view of TfL, the Scheme would be “likely to be endorsed if submitted to public inquiry”. There was no duty upon TfL to draw specific attention to these passages in the Report or (as Mr. Henderson seems to imply) upon the Mayor to refer expressly to them in his reasons. What is beyond doubt from the texts is that the Mayor was fully advised on the issue and he carefully considered and applied that advice.
- It may be that the arguments in favour of a Public Inquiry were strong – just as Potts J acknowledged that they were in Greenpeace – but that does not mean that a decision against the holding of one must fail the Wednesbury tests. In my judgment, it was not irrational or otherwise unlawful for the Mayor to decide as he did.
(2) Article 6
- Mr. Henderson and Miss Busch (who has made most of the oral submissions on this and other ECHR points) also seek to challenge the decision not to hold a Public Inquiry on Article 6 grounds. The material words in Article 6(1) are:
“In the determination of his civil rights and obligations…….everyone is entitled to a fair and public hearing…..by an independent and impartial tribunal established by law.”
The argument is an increasingly familiar one which, in the present case, is expressed in this way: the decision of the Mayor in confirming the Order determines the civil rights of others, who have thereby been denied a fair and public hearing by an independent and impartial tribunal established by law. The claimants in the Kennington case are seeking to protect their own civil rights – rights under the ECHR – but Westminster are seeking to protect the civil rights of “those living on or in the vicinity of the Inner Ring Road”, or at least that part of it which runs through the City of Westminster. This raises a threshold issue in relation to Westminster, namely: can a local authority enforce a claim based on a breach of an ECHR right?
- By section 7(1) of the Human Rights Act 1998 only a “victim” can bring proceedings against a public authority for acting in a way which is incompatible with a Convention right. Section 7(7) then provides:
“For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.”
Article 34 limits applications to
“…..any person, non-governmental organisation or group of individuals claiming to be a victim.”
Mr. George submits that Westminster, notwithstanding the nomenclature “The Mayor and Citizens of the City of Westminster”, is not a “non-governmental organisation”. He relies on Strasbourg jurisprudence in which local authorities have been held to fall outside Article 34: Rothenhurm v. Switzerland (1988) 59 DR 251; Austria Municipalities v. Austria (1974) 17 YB 338; and Ayuntamien de Mula v. Spain (1991) 68 DR 209. The position, he submits, is self-evident.
- Mr. Henderson seeks to circumvent that by a series of submissions that lack nothing in ingenuity. They are (i) that as the Administrative Court is itself a public authority within the meaning of section 6, it has a statutory duty to consider an allegation of a breach of a Convention right; (ii) that section 222(1) of the Local Government Act 1972 permits a local authority, where it considers it expedient for the promotion or protection of the interests of the inhabitants of its area, to prosecute any legal proceedings and, in the case of civil proceedings, to institute them in its own name; (iii) that Article 34 should be construed purposively and in a non-exclusionary way; (iv) that by virtue of section 3 of the Human Rights Act, section 222 of the Local Government Act should be construed accordingly; (v) that to allow human rights submissions to fail for want of a qualified individual or group would offend the Civil Procedure Rules and their emphasis on justice and fairness; (vi) that the court should not close its eyes to the difficulties faced by individuals who bring proceedings such as these – “it is a David v. Goliath-type struggle”; (vii) that the Strasbourg authorities relied upon by Mr. George are distinguishable because in them the local authorities were seeking to enforce their own supposed human rights rather than those of their inhabitants; and (viii) that the leading English texts (Lester and Pannick, Human Rights: Law and Practice, para 2.7.2(6); Beatson, Grosz and Duffy, Human Rights: the 1998 Act and the European Convention, para 4-26) do not actually reflect the Strasbourg authorities.
- In my judgment, none of these valiant submissions is correct. The position under Article 34, and therefore section 7, is abundantly clear and universally understood. It is that a local authority cannot bring itself within the definition of a “non-governmental organisation”. At one point in his submissions, Mr. Henderson thought that he had found some support in an extract from Hansard, quoting the Parliamentary Under-Secretary of State for the Home Department during the Committee stage of the Human Rights Bill in the House of Commons but it turned out that the words in question were from an editorial footnote in Lester and Pannick (above) and that, elsewhere in the same speech, the Minister actually said:
“A local authority cannot be a victim under clause 7, because it cannot be a victim in Strasbourg under current Strasbourg jurisprudence”
For me, at this level, to accede to Mr. Henderson’s submissions on this point would be revolutionary. I am entirely satisfied that Westminster’s attempted reliance on the human rights of its inhabitants is misconceived and is rendered impossible by section 7(7) and Article 34.
- I therefore turn to the Article 6 argument in the Kennington case. Miss Busch puts it in this way. The Scheme will interfere with and be “decisive of” the residents property rights. In particular, it will reduce the value of their homes and will subject them to disturbance or nuisance because of a predicted increase of traffic on the part of the Inner Ring Road which is Kennington Lane. In Albert and Le Compte v. Belgium (1982) 5 EHRR 533 the European Court of Human Rights said (at para 29):
“The Convention calls for at least one of the following two systems: either the jurisdictional organs themselves comply with the requirements of Article 6(1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1).”
In the present case the “jurisdictional organ” in question is, of course, the Mayor. It is common ground that he is not “an independent and impartial tribunal”. Miss Busch submits that, in the circumstances of this case, judicial review is not “full jurisdiction” because it cannot provide the necessary independent assessment of the facts. Accordingly, the Mayor was in legal error when he decided against a Public Inquiry which would secure the appropriate independence and impartiality in the context of a fact-finding investigation.
The case for the Mayor is that (i) his decision is not determinative of the resident’s civil rights; and (ii) in any event, judicial review provides the appropriate independence and impartiality. I turn now to the issues which emerge from these rival submissions.
(i) Is the Mayor’s decision determinative of the Residents’ civil rights?
- Cathy Preece lives in a basement flat on Kennington Lane. Gareth Adamson lives just off Kennington Lane. The civil rights which they claim have been interfered with by the Mayor’s decision are variously expressed by Miss Busch as “their property rights in their homes” and their “rights to use and enjoy their homes”. They claim that the result of the Mayor’s decision will be to depreciate the value of their homes. As to value, they rely on a one-page letter from Daniel Cobb, estate agents, relating to 233-235 Kennington Lane, which states:
“The properties that I have viewed on this terrace which are now on ‘the wrong side of the border’, in our view would depreciate by an average of £15,000 - £30,000 dependant on square footage and the position within the building.”
The letter ends with a statement that it is not a formal valuation and “we cannot accept responsibility for a third party acting upon it”. Perhaps in anticipation of that document being viewed by the Court as virtually worthless – which, for forensic purposes, it is – the Residents also rely on a last minute report from Cluttons. It is a more reasoned document which focuses on Cathy Preece’s flat and concludes
“I…..think it reasonble and in the minds of potential purchasers likely that there will be a fall in the values in Kennington Lane at or more than that established between Kennington Park Road and Kennington Lane/Kennington Road. Accordingly, I would expect the value of the flat would fall from £160,000 to £134,000.”
In addition, reliance is placed on the evidence of one of Westminster’s witnesses, Joe Valente of DTZ Holdings, who states that the introduction of the Scheme “may well have a number of significant impacts on property values in Central London and elsewhere, both positive and adverse”.
- All this led to the Mayor procuring and relying on a report from Chestertons, based on the most recent, lower predictions of the likely increase in traffic. It concludes that
“levels of value along Kennington Lane already take into account the level on what is an established and busy vehicular route. Consequently there is no reason to believe that congestion charging will lead to any reduction in the value of [Cathy Preece’s] flat or any other properties in that area.”
- The author of that report is critical of the methodology of the Cluttons report. Mr. Abraham, the GLA’s Head of Transport, refers to a recent study on the effect of road traffic on residential property values. Applying an extrapolation from the figures in that study to foreseeable increases in traffic in Kennington Lane would suggest little or no effect on property values. In this, as in other areas, Mr. George submits that the approach of the Claimants to human rights trivialises and debases cherished concepts. In proceedings such as these, the judge is in no position to make precise findings in relation to disputed opinions but I do feel able to say that I view the alarmist opinions on property values with deep scepticism.
- Miss Busch submits that it is not necessary for the Residents to prove a reduction in value in order to establish an interference with their civil rights for the purposes of Article 6(1). She relies in particular on two authorities. In Ortenberg v. Austria (1994) ECHR 524 the applicant was opposed to the development of terraced housing adjacent to her land and to the grant of related building permits. She claimed that her civil rights were being interfered with by reason of the depreciation in the value of her property. The Court held that the statutory procedures had resulted in a determination of her rights but she did not succeed in establishing a breach of Article 6(1) on the facts. The passage on which Miss Busch relies reads (para 28):
“In this instance the applicant relied on public law and alleged that the provisions of the [Austrian legislation] had not been complied with. In so doing, she nevertheless wished to avoid any infringement of her planning rights, because she considered that the works on the land adjoining her property would jeopardise her enjoyment of it and would reduce its market value.
Having regard to the close link between the proceedings brought by Mrs Ortenberg and the consequences for the outcome of her property, the right in question was a civil one.”
This was recently considered by Elias J in British Telecommunications and another v. Gloucester City Council, 26 November 2001, the second authority relied upon by Miss Busch. Elias J held the civil right which was acknowledged by the Court in Ortenberg was “the right to retain the value of her property” (para 140). Addressing the case before him, he said (para 143):
“If the evidence were that the value of the Claimant’s properties had reduced as a result of the outline planning consent, I should have no doubt whatsoever that Article 6 was engaged. But as I have said, there is no evidence how the value has been affected. Although I have not found this an easy question to resolve, I have ultimately come to the conclusion that this does not matter. The Claimant’s properties have been subject to various permissions and consents which directly relate to the land and which are likely to have had some impact on their value. There is an interference with their property rights to which they object. I do not think that they must satisfy the court that their objections are justifiable. They must be taken to know whether the undoubted interference with their property rights is acceptable to them or not. If it is not, they are entitled to say that their rights are directly affected and to seek to preserve the status quo.” (My emphasis).
The submission on behalf of the Kennington Residents is that they came within this formulation.
- Mr George submits that the authorities do not support the proposition that Article 6 is engaged merely by a reduction, even less by a conjectural loss of property values as a result of an administrative decision. He draws support from Bovis Homes Ltd v. New Forest District Council, 25 Janaury 2002, in which Ouseley J stated (para 251):
“…..a pecuniary effect does not of itself demonstrate that proceedings are determinative of civil rights. It is necessary to identify rights which are determined and not just effects.”
In my judgement that is a helpful analysis. It is entirely consistent with British Telcommunications because there the land of the claimants included land which had been made the subject of a compulsory purchase order and a planning permission for which they had not themselves applied (see paras 11, 13 and 129-130). I do not read the judgment of Elias J as meaning that Article 6 is engaged whenever a loss of property values is claimed to result from an administrative decision. Nor does Ortenberg support such a wide proposition.
- The next contention on behalf of the Mayor is predicated on the observation (with which I agree) that the evidence upon which the Residents rely in relation to loss of property values and amenity is flimsy, conjectural and unconvincing. In Barmer–Schafroth v. Switzerland (1977) 25 EHHR 598, the European Court of Human Rights said (para 32):
“The outcome of proceedings must be directly decisive for the right in question. As the Court has consistently held, mere tenuous connections or remote consequences are not sufficient to bring Article 6(1) into play”
This informed the recent judgment of Sullivan J in R (on the application of Vetterlein) v. Hampshire County Council  Env LR 8, para 63. In addition, when what is alleged is a reduction in value or amenity that has not yet materialised, it is appropriate to require
“reasonable and convincing evidence of the probability of a violation…..mere suspicion or conjecture are not enough” (Asselbourg v. Luxembourg, Commission, 29 June 1999, Appeal No 29121/95, applied in Vetterlein (above) para. 57).
- In my judgment, these statements are very much to the point in the present case, where the expert evidence relied upon is unconvincing and the evidence of the Residents themselves is little more than assertion, albeit, I accept, based on natural and sincere concern.
- Drawing together these various strands, I am unpersuaded that the Mayor’s decision is determinative of the residents’ civil rights.
Excursus: a bold submission
- Mr. George’s entry for the ingenuity award is to be found in this bold submission: Article 6 does not apply because the congestion charge is or is in the nature of a tax and, as such, does not attract the protection of Article 6(1). It is true that the charge is sometimes referred to in a vernacular or journalistic way as a tax. Indeed, the TfL Report at one point says that “there are some similarities to a tax”. Moreover, there is indeed a principle which Mr. George correctly identifies. In Ferrazini v. Italy, 18 July 2001, the European Court of Human Rights was concerned with the situation where “an obligation which is pecuniary in nature derives from tax legislation and is otherwise part of normal civil duties in a democratic society” (para 25). The Court stated (para 29):
“Tax matters still form part of the hard core of public authority prerogatives, with the public nature of the relationship between the taxpayer and tax authority remaining predominant…..tax disputes fall outside the scope of civil rights and obligations, despite the pecuniary effects which they necessarily produce for the taxpayer.”
However, it is clear that whatever civil rights the Kennington residents may be said to be relying on, they do not arise out of the relationship between a taxpayer and the tax authority. What is in issue is not a tax dispute at all. If the Residents’ case on Article 6 had been able to surmount the other hurdles, it would not have foundered on this one.
(ii) Is judicial review “full jurisdiction” in the circumstances of this case?
- Since the coming into force of the Human Rights Act 1998 there has been a considerable amount of litigation raising the issue of “full jurisdiction” in the context of judicial review of such matters as planning and housing decisions by local authorities. What at first seemed debatable has now become relatively clear. The authorities, of which the leading one is Alconbury Ltd v. Secretary of State for Transport and the Regions  2 WLR 1389, HL, have recently been succinctly synthesised by Laws LJ in Runa Begum v. London Borough of Tower Hamlets, 6 March 2002, CA, in the following passage (para 40):
“……the extent to which the first instance process may be relied on to produce fair and reasonable decisions is plainly an important element. But it is not to be viewed in isolation. The matter can only be judged by an examination of the statutory scheme as a whole; that is the necessary setting for any intelligent view as to what is fair and reasonable. Where the scheme’s subject-matter generally or systematically involves the resolution of primary fact, the court will incline to look for procedures akin to our conventional mechanism for finding facts: rights of cross-examination, access to documents, a strictly independent decision-maker. To the extent that procedures of that kind are not given by the first instance process, the court will look to see how far they are given by the appeal or review; and the judicial review jurisdiction (or its equivalent in the shape of a statutory appeal on law) may not suffice. Where however the subject-matter of the scheme generally or systematically requires the application of judgment or the exercise of discretion, especially if it involves the weighing of policy issues and regard being had to the interests of others who are not before the decision-maker, then for the purposes of Article 6 the court will incline to be satisfied with a form of inquisition at first instance in which the decision-maker is more of an expert than a judge (I use the term loosely) and the second instance appeal is in the nature of a judicial review. It is inevitable that across the legislative board there will be instances between these paradigms, sharing in different degrees the characteristics of each. In judging a particular scheme the court, without compromise of its duty to vindicate the Convention rights, will pay a degree of respect on democratic grounds to Parliament as the scheme’s author.”
For our purposes, the “statutory scheme” is the framework prescribed by the Greater London Authority Act and, within it, the Mayor is the “first instance” decision-maker. The issue which I have to resolve is whether we are essentially in the territory within which judicial review is a sufficient process for “full jurisdiction”, that is the equivalent of Laws LJ’s second paradigm. If we are, then it would militate against the court requiring a Public Inquiry to secure compliance with Article 6.
- I am disclined to overload this part of the judgment with excessive citation of authority, but it is necessary that I also refer to R (on the application of Adlard) v. Secretary of State for Environment, Transport and the Regions  EWCA Civ 735 which has played a prominent part in the submissions of counsel. Its context is the impact of Article 6 on the position of objectors to an application for planning permission. The consideration of authority in the judgment of Simon Brown LJ begins with lengthy quotations from Laws LJ in Runa Begum. His Lordship then continues (at para 17):
“What, then of the planning process? Where in the spectrum does this statutory scheme lie|? To my mind there can only be one answer to that question and it is the same answer as Runa Begum gave with regard to the homelessness legislation, namely ‘towards the end of that spectrum where judgment and discretion, rather than fact-finding, play the predominant part’.”
And later (at para 32)
“Quintessentially, the decision whether or not to permit this development (and the departure from the development plan which it represents) involves the questions of discretion and planning judgment rather than the resolution of primary fact.”
Mummery LJ expressed agreement with Simon Brown LJ, as did Dyson LJ, who said (at para 46):
“…..the rights of objectors to planning applications under Article 6…..are not violated if a local planning authority refuses to accord them a public inquiry, or indeed any form of oral hearing. This is because a combination of the authority’s initial decision-making process and judicial review by the High Court is sufficient to ensure compliance with Article 6.”
- In my judgment, these principles apply in a similar way to the present case. I appreciate that our context is not, in the strictest sense, ‘the planning process’, although it has much in common with it. The Claimants seek to present the process in this case as more of a fact finding one by referring to differences of opinion and methodology in relation to such things as traffic increases, air quality, noise and property values but these are the very sorts of matter which are often in play in the planning process and which were characterised by Simon Brown LJ as “questions of discretion…..and judgment”. Whether traffic on the Inner Ring Road will increase by 10%, 15% or 25% and whether property values will depreciate significantly or hardly at all are not currently questions of primary fact. They are matters of prediction, which in turn is a matter of judgment, upon which opinions may differ.
- Simon Brown LJ acknowledged (at para 32) that, in a particular case, the court might be satisfied that, exceptionally, a local planning authority had acted unfairly or unreasonably in denying an objector any or any sufficient oral hearing, in which case it would quash the decision and require such a hearing to be given. Can it be said that the present case is exceptional? I do not consider that it is. Although the Scheme is a very large-scale one, is intended to change the habits of a large number of people and affects a sizeable and central part of London, I do not consider that, exceptionally, Article 6 requires a Public Inquiry. In reaching this conclusion I have in mind the same factors which led me to the conclusion that, at common law, the decision not to hold a Public Inquiry is not susceptible to challenge in the circumstances of this case.
Ground 4: Human Rights
- Both Westminster and the Kennington Residents seek to challenge the Mayor’s decision on the basis of alleged breaches of Convention rights. For the reason I gave when rejecting Westminster’s case on Article 6, I am satisfied that Westminster does not have the standing to mount any claim in respect of other Convention rights. I refer again to section 7(7) of the Human Rights Act and Article 34 of the Convention. Accordingly, I shall consider further under this heading only the case of the Kennington Residents. That case is advanced by reliance on Article 8 and Article 1 of the First Protocol.
- The material parts of Article 8 state:
“1. Everyone has the right to respect for…..his home….
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of…..public safety or the economic well being of the country…..or for the protection of the rights and freedoms of others.”
The rival submissions raise the following issues: (1) is Article 8 engaged? (2) if so, can the Mayor establish justification under Article 8.1?
(1) Is Article 8 engaged?
- In their Claim Form, the Kennington Residents put their case in this way:
“The…..Order, once it is implemented, will directly interfere with the Claimant’s rights to their homes, in that it will pollute the atmosphere in which their homes are located.”
The factual basis upon which they rely is founded upon an increase in traffic on Kennington Lane, with consequential air and noise pollution. Miss Busch seeks to support this case by reference to Lopez Ostra v. Spain (1995) 20 EHHR 277, Guerra v. Italy (1998) 26 EHHR 357 and Hatton v. United Kingdom  34 EHRR 1. These authorities undoubtedly illustrate the principle upon which the Kennington Residents’ case on Article 8 is based. However, their facts are very different from those of the present case. They were concerned, respectively, with a liquid and solid waste plant, an agricultural chemical plant and night flights at Heathrow. Miss Busch concedes that there is a threshold applicable to Article 8 but submits that it is crossed in the present case. She develops her argument by distinguishing between quantitative and qualitative significance – a small increase in pollution in a situation where noise and air pollution is endemic may be qualitatively significant.
- Mr. George submits that this approach ignores the consistent tenor of recent authority. He refers to Asselbourg v. Luxembourg (above), R. (on the application of Cummins) v. Camden LBC  EWHC Admin 1116, paras 322-324 and Vetterlein  Euv LR 198, paras 60-61, in which a claim based on Article 8 was dismissed because the claimants had failed to show with “reasonable and convincing evidence” any more than a generalised concern in relation to emissions from an incinerator, even though World Health Organisation guidelines were being exceeded. In my judgment, these authorities are very much to the point.
- The fact is that the evidence available to the Kennington Residents in relation to Article 8 is extremely thin and falls far short of being “reasonable and convincing”. The witness statements of Cathy Preece and Gareth Adamson do not significantly advance the case in this regard. To the extent that they go beyond what is common ground – that it, that there will be an increase in traffic using Kennington Lane – they contain mere assertions. There is nothing to contradict the evidence of the Mayor’s advisors to the effect (and I paraphrase) that any adverse effects will be unsignificant. Even on a “worst case scenario” of a 25% increase in traffic, the predicted increase in pollution would be small and the most recent predictions of traffic increase are more in the region of 10%. In all these circumstances I do not consider that the Kennington Residents can establish the engagement or a prima-facie breach of Article 8.
- Having regard to that finding, this issue does not strictly arise, but I shall refer to it briefly. The Mayor’s decision having been found procedurally adequate, it is axiomatic that, if there is any interference with the right to respect for one’s home, it is “in accordance with the law”. The debate then shifts to the proportionality test contained in the remainder of Article 8.2. Miss Busch’s submissions on this issue come under two headings. The first relates to the question whether any interference would be “serious” or “significant”. So far as that is concerned, I have already concluded that there is nothing to contradict the evidence of the Mayor’s advisors that any adverse effects will be insignificant. Her second argument is that it is for the Mayor to show that it was necessary in a democratic society for him to confirm the Order without first having commissioned an EIA and/or caused a Public Inquiry to be held and/or provided for appropriate ameliorating measures or compensation. If the Mayor did not properly consider the proportionality test, it is for the Court to satisfy itself as to proportionality on the same basis. Thus the EIA and Public Inquiry contentions return to the limelight. Indeed, part of the submission is that not only was the Mayor disabled from applying the proportionality test because he did not have the quantity or quality of information which an EIA or a Public Inquiry would have yielded; the Court too is similarly and irremediably disabled.
- This is a beguilingly constructed submission but, in my judgment, it is erroneous for a number of reasons. First, if (as I have held), Westminster’s case on an EIA and a Public Inquiry fails, it would be surprising if the confirmation of the Order were to be flawed because of the omission to extend one or both of those procedures to Kennington Lane in circumstances where one is not mandatory under the Directive or the Regulations (as Miss Busch accepts) and neither is required by Article 6 or the demands of rationality. Secondly, the Mayor received specific advice that if (contrary to the views of the advisors) there were interferences with Convention rights, the proportionality test would be satisfied. This is apparent on the face of the Mayoral Approval forms and also from the evidence of Mr. Abraham. Although that advice was not expressly referred to in the Mayor’s Statement, by inference it was accepted. Thirdly, I accept the submission of Mr. George, based on the judgment of Dyson LJ in R (on the application of Samaroo) v. Secretary of State for the Home Department  All ER (D) 215 at para 35, that, as in Samaroo, we are in an area in which, when considering the balancing exercise, the decision maker is to be afforded a discretionary area of judgment of some width. Fourthly, it is important to recall the context. The reduction of congestion in Central London is undoubtedly a legitimate aim. The evidence justifies the view that a charging scheme is the only effective way to achieve such a reduction. When Parliament addressed the subject in the Greater London Authority Act 1999 it opened the door for such a scheme without referring to any alternative, save for work place parking which was rejected by the Mayor. The advice to the Mayor was to the effect there are no practicable alternatives, a point to which the Mayor himself refers in his Statement. The Kennington Residents do not present an agreed alternative. Indeed, they seem to differ from each other as to whether the boundary of the zone should be adjusted northwards to the river or southwards to Harleyford Road. Fifthly, the compensation argument is flawed. For one thing, the legislation does not permit the Mayor to include compensation in the Scheme. For another, the authority upon which Miss Busch relies, Marcic v. Thames Water Utilities  EWCA Civ 64 does not strictly impact on this case and the Strasbourg jurisprudence does not persuade me that compensation is essential for proportionality in circumstances such as these.
- In all these circumstances I am satisfied that the decision to confirm the Order does not involve a breach of article 8.
Article 1 of the First Protocol
- Article 1 states:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
In relation to this provision, Miss Busch relies on reduced property values and the same amenity points which were advanced by reference to Article 8. Her task is a difficult one. So far as “peaceful enjoyment” is concerned, in S v. France (1990) 65 DR 250 the Commission observed (at p. 261):
“Article 1…..which guarantees the right to peaceful enjoyment of one’s possessions….does not, in principle, guarantee the right to continue to enjoy those possessions in a pleasant environment. Nevertheless…..noise nuisance which is particularly severe in both intensity and frequency may seriously affect the value of real property or even render it unsaleable or unusable and thus amount to a partial expropriation.”
Mr. George submits that this illustrates the high threshold which a claimant must surmount when his claim is based on, for example, environmental impairment and a reduction in property values (see also Mellacher v. Austria (1990) 12 EHRR 391 and the commentary in Grosz, Beatson and Duffy, Human Rights: The 1998 Act and the European Convention, pp 339-341). I agree. In my judgment, the Kennington Residents cannot establish a breach of Article 1. The evidence comes nowhere near it. If it had been necessary to address justification, my conclusion would have been the same as under Article 8 and for similar reasons.
Other Convention Rights
- In the course of submissions, reference was made to other Convention rights, for example the right to life (Article 2) and freedom of religion (Article 9). I am satisfied that it is unarguable that Article 2 is engaged. I shall refer briefly to Article 9 towards the end of this judgment.
The Interested Parties
- Various interested parties were served with notice of these proceedings. At the hearing, only one was represented, namely RBKC, for whom Mr. Henderson also appeared. Several others filed evidence. I shall deal with them briefly.
- To a large extent, the case advanced on behalf of RBKC overlaps with that of Westminster and, where it does, the issues are resolved by this judgment in favour of the Mayor for the same reasons. There are additional factual matters raised by RBKC. One relates to car parking within the area. RBKC has a highly developed system of residential parking permits, with significantly more permits issued than there are spaces available. It is estimated that some 4500 residents’ vehicles leave RBKC each day for the charging zone. If and to the extent that the Scheme would deter some of this vehicle use, it would create additional parking pressure within the RBKC where daytime residents’ parking averages 90% and is at or near capacity in some locations. It is suggested that the Scheme
“will lead to ‘daytime high parking stress’. Residents will regularly have to park long distances from their homes and waste increasing amounts of time searching for parking places. This in turn causes traffic flow problems: vehicles travel slowly while searching for parking bays and/or park illegally. Both activities impede traffic flow.”
It is submitted that the Mayor did not obtain sufficient information about these traffic implications prior to his decision and that, accordingly, he was not in a position to satisfy himself whether the Scheme would promote and encourage the efficient and economic use of roads in RBKC. The issue is also formulated on a human rights basis. In my judgment these complaints are unsustainable. To the extent that they turn on consultation, the consultation process was adequate for the reasons I gave when rejecting Westminster’s claim. The human rights reformulation fails for two reasons. First, because RBKC is not a victim within section 7 of the Human Rights Act. Secondly, a parking permit which does not guarantee a right to park in a particular place or at all – there being an excess of permits over spaces – does not, in my judgment, carry with it engagement with any Convention right. RBKC also makes submissions about such things as traffic modelling and air quality but, in my judgment, they take the matter no further than the Claimants are able to do.
(2) The Automobile Association
- Although the Automobile Association contended for a limited Public Inquiry,it did so in terms which conceded that reasonable consultation had taken place and that reasonable account had been taken of its response. Its evidence falls far short of that would be required for a sustainable challenge to the Mayor’s decision.
(3) The Covent Garden Market Authority
- The concern of this interest group was to argue the case for a discount or exemption from the congestion charge for market traders due to their unsocial hours of working. The evidence points to this having been properly considered but rejected on the grounds that many other people work unsocial hours too and, in any event, preferential treatment of this kind would lead to implementation or enforcement problems.
(4) British Vehicle Rental and Leasing Association
This Association supports the case for a Public Inquiry and an EIA but is in no better position to sustain that case than are the Claimants. It participated in the consultative process and its representations were properly considered.
(5) Stephen Plowden
- Mr. Plowden is clearly a man with personal knowledge and expertise in this field. He has strong views on the subject but did not air them in the formal consultation process. He advances strong criticism of the Mayor and goes further than Westminster and the other Interested Parties in alleging predetermination. However, his allegation is not substantiated. The evidence in the case as a whole goes no further than acceptable pre-disposition (see above, para 27). His preference is for a more radical solution but that does nothing to detract from the lawfulness of the Mayor’s confirmation of the Scheme.
(6) Central Synagogue
- Rabbi Marcus seeks to advance an argument by reference to Article 9 of the ECHR, freedom of religion. The Central Synagogue is within the charging zone. The argument is that by compelling a worshipper to pay the congestion charge to drive to the Synagogue, the Mayor is interfering with that persons rights under Article 9. I am satisfied that this is not so.
- It is apparent from all that I have said in this lengthy judgment that, in my view, these applications for judicial review by Westminster and the Kennington Residents must fail. It is not for me to be influenced in any way by whether I consider the Scheme to be good or bad. Whether or not Central London should have a congestion charging scheme is a matter for the GLA, TfL and, ultimately, the Mayor, whose confirmation is a prerequisite. As Lord Hutton said in the Alconbury case (para 189):
“…..a court does not decide whether an administrative decision was well-founded in substance. ”
The court’s function is simply to consider the lawfulness of the decision, judged against established public law criteria and, where applicable, the human rights set out in the Convention and now enshrined in domestic law by the Human Rights Act 1998. I am satisfied that the decision is a lawful one. It may be that a more cautious Mayor would have sought to underwrite his judgment by resort to, for example, a Public Inquiry, but this Mayor has lawfully decided against that course.
- I remind myself that the hearing before me was a “rolled up” hearing, to consider permission and, if appropriate, the substantive challenge. So far as Westminster is concerned, it seems to me that some of its case can properly be described as having been arguable and some not – for example, its attempt to bring itself within section 7 of the Human Rights Act is not. I have decided that the pragmatic and sensible course is for me to grant Westminster permission generally but to dismiss its application. That way, if it wishes to take the matter further, everything can be kept together rather than opening up the prospect of two procedures in the Court of Appeal – a renewed application for permission in relation to some grounds and an application for permission to appeal on others. Mr. George raises some persuasive arguments to the effect that Westminster should be refused permission to apply for judicial review by reason of a lack of promptness in the application and its conduct in and towards the proceedings. Although there is force in his submission, I am not disposed to refuse permission to apply in Westminster’s case. However, if I had gone on to find in its favour in the substantive application, it does not follow that I would necessarily have granted discretionary relief. Indeed, I made it clear in one part of the judgment (para 33) that I would not have done so in respect of the point I was there considering. Also, it is likely that I would have refused relief if Westminster had succeeded only on Ground 1 on the basis that, on the evidence, a lawful reconsideration would be unlikely to produce a different decision.
- So far as the Kennington Residents are concerned, different considerations are in play. Mr. George is particularly critical of their approach to this litigation – though not of the contribution of Miss Busch, whose conduct of the case in difficult circumstances rightly attracted the admiration of all. Mr. George raises these arguments for refusing permission to apply in the case of the Kennington Residents: (1) the application was filed on 24 May 2002 – that was within a day or two of three months after the Mayor’s decision but was not prompt; (2) initially, the Mayor was not served with the bundle referred to in the Claim Form and, when a bundle arrived on 18 June, it was incomplete; (3) when the Claim Form was served, it did not contain the grounds of challenge, which only arrived with a letter of 30 May; (4) there had been no letter before action and the pre-action protocol was not observed; (5) whilst acknowledging the difficulties facing small groups of individuals in seeking to mount an application for judicial review, the shortcomings in the present case were inexcusable because
(i) it is a vociferous group with an articulate and intelligent spokesman in the person of Professor Mc Dougall;
(ii) the group had been in touch with the Environmental Law Foundation in anticipation of an application for judicial review in February and had begun to seek legal advice as early as 25 Janaury;
(iii) the documentation put into circulation by the Environmental Law Foundation refers to the requirement of a letter before action and the need to commence proceedings as quickly as possible within the three month period;
(iv) the solicitor who lodged the application was not formally instructed until 23 May, even though the ELF, which recommended him, had by then been involved for months;
(v) that solicitor handled the case with conspicuous inefficiency before withdrawing to go on holiday on the Friday before the hearing was due to start on the Monday.
The solicitor in question is unconnected with Gill & Co the firm which is now representing the Kennington Residents.
- In my judgment, the Kennington Residents did not commence proceedings promptly. Is there a good reason for me to extend time? I do not consider that there is. I accept that, in the light of the Westminster proceedings, any prejudice to the Mayor and TfL arising out of the letting of contracts and other factors is not materially increased by the Kennington proceedings. However, when one looks at the substance and merits of the case, the submissions advanced by Miss Busch turn overwhelmingly on human rights, points which, in my judgment, do not reach the arguability threshold in this case. To the extent that they raise other issues, for example on consultation, information or a voluntary EIA, the case for the Kennington Residents is in my view a weak one to the point that, if Westminster’s case fails, their case will fail too. If, on the other hand, Westminster’s case were to be successful, the Kennington Residents would receive the benefit of that success even without participation in the litigation. I can find no good reason to extend time in favour of the Kennington Residents. I do not doubt the genuineness of their concerns but it would not be just to extend time to enable them to pursue an unarguable case. Accordingly I refuse them permission to apply.
- I am most grateful to all counsel in the case for their helpful and expert oral and written submissions. The oral hearing was squeezed into six days, which was more than the original estimate but less than the case really required. However, there was a great deal of cooperation which enabled everything to be dealt with, if at times at high speed and with the assistance of written submissions, the last of which arrived by arrangement on 23 July. Like counsel, I have had to work against the clock to be in a position to give judgment by the end of term. As a result of the cooperation of the Administrative Court Office, I am in a position to give judgment today but I regret that the judgment may lack some of the jurisprudential or aesthetic refinement to which, with more time, I would have aspired. It deals with the essential reasons why these applications fail but it does not purport to deal with all the submissions, supporting evidence or citations of authority which were before me.