Clean Air Zones – the legal obstacles facing local authorities

2020 will be the year of the Clean Air Zone (CAZ), but councils are anxious about the legal risks that they could bring, writes BDB Pitmans’ lawyer, Rahul Bijlani, who has worked closely with several councils on their CAZ plans.

CAZ schemes in Birmingham, Leeds and Bath are due to come into operation this year and several other cities are developing and finalising their proposals. However, although CAZs form a central plank of government policy on air quality – after all, road transport is the biggest source of nitrogen oxides emissions in the UK- the process of introducing them has been complicated by a lack of practical and legislative support.

It is worth reminding ourselves how the proposed network of CAZs came about. The UK government is under a legal duty under the Air Quality Directive to meet specified NO2 limits but failed to do so, and it took three legal challenges by ClientEarth before an appropriate plan was put in place. Central to this was the requirement that local authorities in areas of NO2 exceedance should implement CAZs. 

The effect of this approach was to transfer a host of procedural burdens and legal risks to those authorities. Authorities who are ‘directed’ by central government must develop a CAZ proposal, consult on it and make an order implementing the scheme, all of which could be the subject of legal challenge. Because of central government’s tardiness, local authorities are also under a duty to achieve compliance with NO2 limits in the shortest possible time. 

CAZs are novel and potentially controversial so the risks are considerable. Local authorities often find themselves in an invidious position, caught between pressure from the likes of ClientEarth – who are naturally seeking to ensure CAZ schemes are as stringent as possible – local pressures to minimise the socioeconomic impacts of CAZ charges, and pressure from central government to justify the costs of doing so. They must therefore tread a very narrow path.

Despite these challenges, numerous authorities have forged ahead and Leeds and Birmingham were due to implement their schemes early this year. However, a centrally-provided online charging portal has been running behind schedule, meaning that these schemes have had to be postponed. 

This is emblematic of a lack of effective support from central government. For example, CAZs are introduced under existing transport legislation governing ‘road user charging’ schemes, which can be an awkward fit with the specific requirements of a CAZ. A local authority CAZ cannot, for example, include the strategic road network (trunk roads, motorways etc.) although these roads make a significant contribution to NO2 levels. Central government, which could implement charges on such roads, has resisted calls to do so.

Unfortunately, the much-vaunted new Environment Bill is another missed opportunity. Instead of introducing a new statutory framework for CAZs (as the draft Clean Air Strategy promised), or even seeking to rectify some of the issues with the current procedure, it remains silent on the subject.

However, CAZs are coming, and as they become an established part of the legal and political landscape the process will become more familiar and the complexities and risks should diminish. The second wave of CAZs will hopefully face a smoother road to implementation and bring about a significant improvement in NO2 levels over the coming years.

Photo Credit – Big Stock