Sadiq Khan will face a High Court challenge this summer over his bid to expand the Ulez to the Greater London boundary, it emerged on Wednesday afternoon.
A judge accepted a request from five Tory councils – Harrow, Hillingdon, Bromley, Bexley and Surrey county council – for a judicial review of the mayor’s plans, according to well-placed sources.
It is thought that the hearing - which will effectively decide whether Mr Khan acted legally or illegally in the way he gave the go-ahead for the Ulez expansion - will take place in July.
A ruling against the mayor could potentially delay the August 29 expansion of the ultra-low emission zone from its current boundary just inside the North and South Circular Roads.
The five councils are understood to have been given the go-ahead to challenge the Ulez expansion on two of their five grounds of appeal.
These are believed to revolve around suggestions that Mr Khan acted beyond his powers by expanding the Ulez by varying the existing scheme order rather than issuing a new charging order, and that he failed to consider including motorists living in the “buffer zone” on the edges of London in the £110m vehicle scrappage scheme.
Nick Rogers, City Hall Conservatives transport spokesperson, said: "The High Court has now ruled there is sufficient evidence that Sadiq Khan’s Ulez decision may have been unlawful.
“The Mayor clearly does not have the legal grounds to proceed with his Ulez tax plans, which take money from charities, small businesses and low income Londoners who cannot afford a new car. Sadiq Khan should do the right thing, immediately stop work on his Ulez expansion, and explain his actions to the court."
Sources said the court had only been required at this stage to decide whether the claims were arguable, and that no decision had been made about the lawfulness of the Ulez.
It is understood that Transport for London will continue to defend the case.
London Tory MPs including Greg Hands, Iain Duncan Smith, Paul Scully and Gareth Bacon welcomed the news, which effectively means the claim has passed its first legal hurdle.
Mr Scully, the Government’s Minister for London and a possible Tory mayoral candidate, said: “The Mayor should just accept that he needs to go back and think again how he can take Londoners along with him rather than punishing them.”
I am delighted that the five local authorities, including Bromley, challenging ULEZ in the courts, have won the first stage in their legal battle against Sadiq Khan's decision.
— Gareth Bacon MP (@GarethBaconMP) April 12, 2023
While the full legal case is still to be fought, today's decision is a significant step forward. 1/5
The councils had also argued that Mr Khan had relied upon “incorrect” assumptions about the number of non-compliant vehicles in the expanded zone, and there was a lack of detail in how the £160m cost of expanding the scheme, or the £200m in annual expected income, had been calculated.
There was also concern over how TfL predicted future rates of compliance with the Ulez - which it expects to cease “making a profit” by 2027 due to drivers ditching more polluting vehicles.
However these three claims will no longer form part of the case.
A spokesperson for the Mayor said: “The Mayor is pleased to see the court has refused permission for the majority of the grounds. We will continue to robustly defend his life-saving decision to expand the Ulez and continue with preparations without delay.
“It is a shame that some local authorities have chosen to attempt this costly and misguided legal challenge instead of focusing on the health of those they represent.
“Around 4,000 Londoners die prematurely every year due to air pollution. This is a health emergency and the Mayor is not prepared to stand by and do nothing while Londoners are growing up with stunted lungs and are more at risk of heart disease, cancer and dementia due to our toxic air.”
According to sources, the High Court has ruled that grounds 1 ("Failure to comply with the statutory requirements in Schedule 23 and/or frustration of the statutory purpose") and 3 ("Failure to take into account a material consideration and/or irrationality due to failure to consider the potential for inclusion of non-Londoners in the new scrappage scheme") have sufficient evidence to proceed to trial.
However, the scrappage scheme claim was said to be “on the cusp” of being arguable and only part of it will be considered at the full hearing.
In February, Mr Khan claimed the application was “wholly without merit” and “misconceived” and advised the councils not to waste taxpayers’ cash.
About 200,000 additional drivers a day are expected to have to pay the £12.50 emissions-based levy if the zone expands to the Greater London boundary.
As many as 700,000 cars registered in Greater London are thought to be non-compliant with the Ulez exhaust rules and their owners thus at risk of having to pay for each day they drive within the zone.
