Glasgow’s Low Emission Zone

Answer

Since its introduction on the 1 of June 2023, there’s been a lot of noise surrounding the Low Emission Zone (LEZ) that’s now enforced in Glasgow City Centre. Glasgow City Council's (GCC) aim is clear: to reduce the levels of harmful emissions in the city centre. This is because the annual legal limit of nitrogen dioxide has been persistently exceeded in several areas across Glasgow. It’s recognised that air pollution, particularly from vehicles, is an invisible killer across the city, with both short and long-term exposure leading to a variety of conditions, including asthma and respiratory infections. The LEZ aims to improve public health and to draw Glasgow closer to complying with both the air quality objectives prescribed under Section 87(1) of the Environment Act 1999, and the emissions reduction targets as set out in Part 1 of the Climate Change (Scotland) Act 2009. In practical terms, the following vehicles are likely to meet the LEZ standards:

• diesel engine vehicles registered after September 2015;
• petrol vehicles registered after 2006; and
• buses and HGVs registered from 2013. 

Although the LEZ sets the precedent for the introduction of clean air plans across Scotland's major towns and cities, its introduction has nonetheless invoked criticism from a range of stakeholders, largely raising financial concerns. Businesses must ensure that their non-compliant vehicles and suppliers don’t enter the restricted zone in order to avoid heavy fees. Fees start at £60 but double each time the non-compliant vehicle enters the restricted city centre zone within the following 90 days. Fines can reach up to a maximum of £480 for cars and light vehicles, and £960 for minibuses, buses, coaches and HGVs. Furthermore, businesses must bear the cost of purchasing LEZ compliant vehicles in order to trade within the city centre. A local charity, Emmaus Glasgow, hosted a fundraiser to facilitate the purchase of new vans that comply with the LEZ standards. Businesses within the LEZ have raised concerns that the zone will discourage customers and suppliers from visiting their premises at a time where city centre high streets are commercially vulnerable. Businesses finding themselves disproportionately affected by the enforcement of the LEZ are those that rely on the exchange of vehicles and daily deliveries.

A legal challenge to GCC's LEZ has been initiated by way of judicial review by Paton's Accident Repair Centre – a vehicle repair business operating within the LEZ that requires a constant stream of vehicles to perform work on. The petitioner argued that the LEZ is unlawful and irrational as it doesn’t make a clear contribution to air quality objectives, thereby failing to comply with Section 14 of the Transport (Scotland) Act 2019. The petitioner also argued that the zone interfered with the European Convention on Human Rights (ECHR) – namely Article 1 of Protocol No 1, which guarantees peaceful enjoyment of possessions. Although the petitioner had gone to some length to ensure his own vehicles were LEZ compliant, not every vehicle repaired was capable of driving into the LEZ without a penalty. The petitioner stressed that the enforcement of the LEZ adversely impacted business demand and revenue. GCC, supported by the Scottish Ministers as an interested party, asserted that Article 1 ECHR wasn’t engaged and any interference with ECHR rights is nonetheless justified to protect public health.

Lady Poole considered both parties' submissions at the Court of Session in Edinburgh. In her Opinion, Lady Poole emphasised that expert evidence led by the petitioner "cannot properly underpin an argument that the GCC was wrong to decide that the LEZ scheme would contribute to meeting air quality objectives". Lady Poole affirmed that judicial review is a process whereby the court adjudicates on the legality of the decisions taken by public bodies and isn’t a means to

judge the merits of their decision making. When considering the petitioner's ECHR-related submission, Lady Poole found that the LEZ did engage the ECHR as "money the business spent on ensuring its recovery, staff and courtesy vehicles were compliant would not have been incurred in any event without the LEZ". When considering whether interference with the petitioner's rights is justified, Lady Poole considered the collective interest of satisfactory air quality and the necessity to protect public health. When issuing her judgment, Lady Poole demonstrated a consideration of air quality objectives and current figures that indicate that many areas in Glasgow, including Hope Street, fail to meet the required quality standards. Accordingly, the petition was refused, as the LEZ was deemed to represent a fair balance of interests and it’s "inevitable that some interests would be adversely affected by the introduction of the LEZ scheme".

It seems clear from the above that the courts have been initially supportive of the LEZ and that the restrictions and penalties look to be here to stay. Accordingly, the increased costs of purchasing and maintaining LEZ compliant vehicles and potential increased delivery costs should be factored into a business's financial forecasting. Solicitors should work with future and currently affected businesses to predict and mitigate the impact of the LEZ, given that further LEZs will soon come into force in Edinburgh, Aberdeen and Dundee City Centres from 2024. In the meantime, city centre businesses affected by the LEZ must adapt their operating models to overcome the additional pressures they’ll soon face. To do this, businesses should analyse how other businesses operate in locations where a LEZ is already in force such as in London. LEZs look to be accepted in various quarters as a force for good, although their impact remains to be seen on local economies.

Julia Shaw is a trainee solicitor at DWF Group Plc.