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Birmingham seeks protection from legal challenge on NO2

Air Quality

Andrew Forster
05 July 2019

Birmingham City Council has asked the Government for protection from any third party legal action in the event of a delay to the city complying with the EU limit value for nitrogen dioxide concentrations. 

The Government has set 2021 as the deadline for the city to comply with the annual mean limit value for NO2 of 40µg/m3. The date is based on computer modelling of an investment package that assumes Birmingham will introduce a Class D charging clean air zone (CAZ) as part of the package next January.  

Last month the council announced that the introduction of the CAZ will be delayed until at least 1 July – and possibly later – because the Government’s joint air quality unit (JAQU) is behind schedule with a vehicle checker that is vital to support the CAZ (LTT 21 Jun). Birmingham says delaying introduction of the CAZ           until next summer means compliance will not now be achieved until 2022.

Phil Edwards, Birmingham’s assistant director for transport and connectivity, told councillors: “Appropriate acknowledgement has been sought from JAQU to protect the council from any subsequent legal action by third parties arising from delays in achieving air quality compliance.” 

Environmental law firm 

ClientEarth has taken the Government to court three times over the UK’s failure to meet EU limit values – which were supposed to be met in 2010. It won each case. 

LTT this week asked the Department for the Environment, Food and Rural Affairs where responsibility lay if cities failed to achieve compliance in line with the date set in a Government direction. “We do not comment on speculation about legal action,” said a spokeswoman. 

The vehicle checker is a database of numberplates and vehicle emissions standards that will enable drivers to see if their vehicle complies with a city’s CAZ Euro emission standards. 

Birmingham says the checker had been due for delivery in October but it is not now expected until at least December. The council’s red-amber-green risk assessment for its CAZ classifies the danger of the vehicle checker being delayed beyond December as ‘red’. 

The delay also affects Leeds City Council’s proposed class B CAZ, which was also planned for introduction next January.

As LTT reported last month, further delays to CAZ implementation in Birmingham and Leeds are possible because the Government is considering changing the approach to delivering part of the payment, settlement and reconciliation (PSR) system.

A national payment portal will allow drivers and businesses to pay CAZ charges irrespective of which zone their vehicles drive in. The PSR system will enable the Government to send councils a list of non-compliant vehicles that have entered each CAZ but failed to pay a charge. After cross-checking the list against local exemptions, councils will issue penalty charge notices against non-payers.

Birmingham’s Edwards told councillors last week there was a “strong likelihood that the reconciliation and possibly certain other system elements may be passed to the council for delivery”. He said it could take up to 12 months to deliver “from the point of local authorities receiving a detailed technical specification”. 

Leeds City Council officers say the reconcilation system is “the interface between the payment system and the vehicle checker system, so that effectively you can see whether a charge has been paid for a non-compliant vehicle entering the zone or enforcement is required”.

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