Eco-Power.Co.UK Ltd, R (on the application of) v Transport for London & Anor

An authority may withdraw approval for a regulated product where an express reservation permits withdrawal if undesirable features emerge. In exercising that power, it may rely on independent technical advice, scientific evidence and repeated testing showing that the product is ineffective. The court need not determine the product’s technical efficacy itself. A claim based on legitimate expectation is misconceived where the approval was expressly conditional. Procedural fairness requires a sufficient opportunity to address the real issue, but later opportunities to provide evidence may cure any earlier deficiency where no prejudice is shown. A withdrawal decision is not irrational merely because comparable products have not faced equivalent scrutiny.

The claimant supplied exhaust-emission reduction systems for London taxis. Transport for London, acting through the Public Carriage Office and relying on technical assessments by the Energy Saving Trust, had granted three approvals. Following conformity testing, it withdrew authority to install and use the claimant’s systems.

The claimant sought judicial review, alleging legitimate expectation, irrationality, disproportionality, material mistake of fact and procedural unfairness. During the proceedings, further testing of the modified system produced results substantially exceeding the applicable Euro 3 nitrogen-oxide limit. The central issue was whether the reconsidered withdrawal of the approval for the modified system was lawful.

1. Outcome. Permission to apply for judicial review was granted because the claim was arguable. The substantive claim concerning the third approval was dismissed. The court reserved consequential matters and relief concerning the first and second approvals, which the defendants accepted could continue.
2. Scope of approval. Objectively, the approval granted on 11 September 2007 related to the modified system. The court accepted that the system had been tested with exhaust gases routed back to the exhaust rather than through the combustion chamber.
3. Withdrawal power and efficacy. The approval was expressly subject to the Public Carriage Office’s reserved right to withdraw authority if undesirable features became evident or were reported. The relevant criterion was functional efficacy. The authority was entitled to rely on the Energy Saving Trust’s independent technical opinion, scientific evidence concerning exhaust gas recirculation, comparative testing and repeated failures to meet the Euro 3 nitrogen-oxide limit.
4. Legitimate expectation. There was no unconditional promise that the claimant could continue selling the modified system. The approval was conditional, so the issue was whether the reserved power had been lawfully exercised.
5. Public-law grounds. The reconsidered decision was not irrational, despite defects in the earlier correspondence and the claimant’s criticisms of testing conditions. The authority was entitled to scrutinise a novel system more closely than other products. The decision was not materially based on mistake of fact within the principles referred to in E v The Secretary of State for the Home Department [2004] EWCA 49. The claimant had received an adequate later opportunity to make representations and submit technical evidence. A blanket withdrawal would have been disproportionate, but the defendants conceded that the first and second approvals should remain unaffected.
6. The court considered that the original decision of 28 March 2008 was also lawful, but held in any event that the lawful reconsidered decision made relief inappropriate.