A FAMILY business which took Glasgow City Council to Scotland’s highest civil court has failed in a bid to stop the operation of the city’s low emissions zone.
Lawyers for John Paton and Sons Ltd told the Court of Session earlier this month that the local authority’s scheme was “illegal” and “draconian” and should be stopped.
Advocate Lord Davidson of Glen Clova KC told judge Lady Poole that the local authority had failed to follow established legal tests before making its decision to introduce the LEZ, which covers Glasgow City centre.
The second phase of the scheme - which started operating in June 2023 - aims to improve air quality in Glasgow City Centre by limiting what vehicles can enter the area.
Cars, lorries and other forms of transportation which do not meet emission guidelines are not allowed and drivers who break the regulations can be fined.
Lord Davidson said that available data showed that air quality in the city centre had been improving in recent years and that this trend was set to continue.
He said the information showed that there was no need for an LEZ to be introduced in Glasgow.
Lord Davidson said that Glasgow City Council’s decision to implement the scheme in the light of this available information was unlawful.
Lawyers for the council and Scottish Government told the court that the scheme was lawful and introduced with the purpose of improving public health. They urged Lady Poole to reject the challenge.
In a written judgement published by the court on Tuesday, Lady Poole upheld the submissions made to her by the local authority and Scottish ministers.
She wrote that the local authority had acted in line with information which had been provided to them by the Scottish Environment Protection Agency (Sepa).
Lady Poole wrote: “The information entitled GCC to conclude the LEZ would contribute towards meeting the air quality objectives.
“The modelling in the two Sepa reports of 2019 and September 2021 available to Glasgow City Council used models validated against monitoring station readings, and included the results in the tables and figures referred to above.
“These gave a clear basis for Glasgow City Council to reach the conclusion that, without the LEZ scheme, air quality objectives would not be met in a number of city centre locations.
"That was a serious matter, because there were legal obligations to meet NO₂ air quality objectives by 2005, yet information before Glasgow City Council indicated those objectives were still not being achieved many years later.
"It was not a mistake of fact for Glasgow City Council to reach its conclusion merely because other methodologies might be applied by other people to reach a different conclusion.
“The information available to Glasgow City Council gave it a basis reasonably to conclude that if there was a LEZ, NO₂ levels in the city centre would decrease, and air quality standards would both be attained and maintained.
“The LEZ would contribute to meeting legally required air quality standards. It was lawful, and not irrational, for Glasgow City Council to conclude the low emission zone properly had as an objective that it would contribute to meeting the air quality standards.”
The judicial review was brought to the Court of Session by a firm that operates an accident repair centre in the city’s Townhead district.
The company’s director William Paton has previously spoken of how he commissioned a report by the Hilson Moran Institute to study the impact of the first phase of the LEZ for buses in the city centre, which came into force in 2018.
The report found that air quality aims were achieved in phase one and the second phase impacting other vehicles would not lead to any further improvement in air quality.
Speaking earlier this year, Paton said: "There's evidence here to show that the public will be massively disaffected by this. Massively.”
Other critics of the scheme say the LEZ will have a detrimental impact on Glasgow’s economy.
The drummer with rock band Gun, Paul McManus, has contributed £100,000 to a campaign which wants the scheme halted.
McManus, who has also made financial donations to the Labour Party, said he wanted to get involved as he feels it will hit poorer people hardest.
In the hearing held last month, Lord Davidson told the court that there were 27 monitoring stations in Glasgow City Centre which monitored levels of Nitrogen dioxide (NO2) in the air - the gas which the local authority hopes to reduce in the air in the city centre Lord Davidson said that 25 out of the 27 stations have recorded “downward trends” of NO2 in recent years.
He said that the two stations which hadn’t recorded the downward trends were located in Hope Street.
The advocate said that the information available to the council meant that it shouldn’t have allowed the LEZ to operate in its present form.
In the judgement, Lady Poole said the information about air quality readings presented to the court by Lord Davidson didn’t meet “statutory” guidelines on how to secure measurements on the subject.
She wrote: “While the statutory guidance does not have the force of law, GCC had to have regard to it, and follow it unless there was good reason not to. The petitioner’s expert opinion is reached with a different methodology, so its utility for present purposes is questionable.”
Lawyers for Paton and Sons claimed that their client’s human rights had been breached by the introduction of the LEZ. The court heard that this was because the firm would lose business making repairs to vehicles which weren’t compliant with low emission regulations.
Lady Poole found that there had been interference with Paton and Sons’s human rights. But she concluded that when legal tests were applied to see if the interference with human rights was enough to stop the LEZ from operating, it was clear that the scheme was lawful.
She wrote: “The petitioner’s possessions protected by… and interfered with by the LEZ scheme had significant value, but appear to have been in the thousands not millions of pounds.
“On the other side of the balance, there were strong collective interests in complying with legal obligations as to air quality, and protecting human health and the environment of the many people who live, work and visit in Glasgow City Centre.
“Having regard to all of these interests, and given the strength of the collective interests concerned, the LEZ scheme represents a fair balance of interests. The interference with the petitioner’s possessions is justified.
“The petitioner is not the only city centre business to which people might drive vehicles.
“Business interests were taken into account, as part of an exercise necessitating the balancing of many different considerations.
“It was not necessary for GCC to work through every consideration which might conceivably be regarded as potentially relevant to the LEZ scheme, and positively discount them.”
Lady Poole concluded that the firm should address any concerns it has about the LEZ to the city council who are obliged by law to review the scheme annually.
She wrote: “If the petitioner now wishes to raise matters it did not put before GCC prior to it bringing the LEZ scheme into force, then the proper avenue for doing so is to make representations to Glasgow City Council purposes of its annual reports under Section 29 of the 2019 Act, or participating in any review ordered by the Scottish ministers under Section 31.
“The decision to bring into force the LEZ scheme on 31 May 2022 is not unlawful.
“The petitioner’s grounds of challenge to the Glasgow LEZ scheme are not well founded.
“The petition, and the petitioner’s motion for decrees of declarator and reduction, are refused.”
