A5 legal challenge – what now?

Today saw the announcement of the decision regarding the legal challenge brought by the Alternative A5 Alliance (AA5A) against the A5WTC road project. As the decision itself is over 60 pages long, there is a useful summary of the decision here. Although the judge rejected most of the arguments put forward by the AA5A, he upheld one, which was related to the impact on rivers and may quash the decision to proceed with the road on this basis.

Background

The project was initially kicked off by the NI Executive back in July 2007 following an offer from the Republic of Ireland to part-fund the project to the tune of £400m (a little under 50% of the £844m cost). Prior to this there was no plan to dual the A5, although the case for it was certainly there. The only plans were a 2+1 upgrade of the Strabane to L’Derry stretch, and a new outer Omagh Bypass, both of which were on the long finger. Its sudden promotion was likely due to the principle of “you don’t look a gift horse in the mouth”, especially when the gift horse is worth 400 million pounds. The route was planned over the following few years and a public inquiry was held in May and June 2011. The Inspector accepted the project and, in February 2012, recommended that it proceed, with the exception of the short stretch from Ballygawley to Aughnacloy at the south end.

Meanwhile, however, the economic downturn had hit the Republic of Ireland so badly that Dublin withdrew (or more accurately delayed indefinitely) its offer of part funding in November 2011. Short of almost half the cost of the scheme, the Minister for Regional Development therefore decided at this stage to proceed with two sub-sections of the route at a cost of £330m. These were:

• Ballygawley to south of Omagh
• L’Derry (Newbuildings) to north of Strabane

with the remaining section (encompassing Strabane Bypass, Strabane to Omagh section, and Omagh Bypass) to proceed at an unknown later date, presumably when Dublin’s funding resurfaced. The contractors were just gearing up to begin work on these two sections in September 2012, when a legal challenge was made by the AA5A, a group representing 18 landowners and farmers, resulting in the whole scheme going on hold.

The Challenge

The media coverage of the opposition to the A5 showed that it focused mainly on two issues:

1. The negative impact on landowners, especially farmers, through whose land the road would pass.
2. Whether the road was actually needed, or at least whether improvements were needed of this scale and magnitude.

Since both of these issues had already been dealt with at the Public Inquiry, the legal challenge itself could only succeed if it showed that the Department for Regional Development had not complied with legislation. The challenge, therefore, concentrated not on the aforementioned general issues, but on six more specific points of procedure:

1. That the inspector at the public inquiry was biased in favour of the Department for Regional Development.
2. A breach of an EU obligation to send a description of/information about the scheme to the Irish Government.
3. Failure to carry out an appropriate assessment of Rivers Foyle and Finn Special Areas of Conservation under the Habitats Directive.
4. Failure to comply with the Strategic Environmental Assessment Directive by not considering reasonable alternatives.
5. Inadequacy of the Environmental Statement under the Environmental Impact Assessment Directive.
6. Breach of the applicants’ property rights and other rights under the European Convention on Human Rights.

The case was heard from 12 February for over a week, and the judgement was reserved until 12 March 2013.

The Ruling

The High Court Judge, Mr Justice Stephens, rejected five of the six challenges:

1. That the inspector at the public inquiry was biased in favour of the Department for Regional Development. Rejected. The judge ruled that “a fair minded observer would not conclude that there was a real possibility that the inspectors were biased“.
2. A breach of an EU obligation to send a description of/information about the scheme to the Irish Government. Rejected. The judge ruled that it was “readily apparent that the Irish Government was a key partner in taking the scheme forward” and that therefore “if there was any breach of this obligation it was of an entirely technical nature elevating form over substance” and rejected this challenge.
3. Failure to carry out an appropriate assessment of Rivers Foyle and Finn Special Areas of Conservation under the Habitats Directive. Upheld. The judge noted that the DRD had concluded that such an assessment was not required since it “was unlikely to lead to significant effects given the remedial measures that could be put in place“. The judge concluded that there was enough concern from evidence put forward by the Loughs Agency that it “raised doubts as to the efficacy of the remedial measures proposed by the Department in relation to the scheme so that the risk of significant likely effects on the sites could not rationally be excluded on the basis of objective information“. He therefore ruled that “there was a breach of the Habitats Directive in relation to both the River Foyle and River Finn special areas of conservation” but did give the DRD eight days to present further evidence making a convincing case, in the judge’s view, that the decision to proceed with the road should not be quashed on this basis.
4. Failure to comply with the Strategic Environmental Assessment Directive by not considering reasonable alternatives. Rejected. The judge ruled that the opportunity to make such a case had long since passed during the design process that had been underway since 2007. He noted “that the applicants had even not sought to challenge those plans and programmes at the time of the public inquiry in 2011 when they had the benefit of legal advice” and rejected this challenge.
5. Inadequacy of the Environmental Statement under the Environmental Impact Assessment Directive. Rejected. The judge ruled that “the inspectors would not have recommended that the A5 Western Transport Corridor Scheme should proceed as proposed by the Department if they had considered the environmental statement was inadequate“. He also rejected the suggestion that the statement was invalid because the road may never be built. He said “I consider that the timing of the deferred section of the scheme is different from what was originally envisaged but that it will proceed. There is a degree of uncertainty as to when it will proceed. However given the importance of the scheme to the economy of Northern Ireland I do not consider that the timescale suggested on behalf of the applicants of 100 years or 200 years is remotely accurate or that the 2025 date is worthless. I consider that it will proceed within a reasonable but unspecified period of time.”
6. Breach of the applicants’ property rights and other rights under the European Convention on Human Rights. Rejected. The judge accepted the Department’s argument that “there is no requirement to consider each case individually once the view has properly been taken on the basis of a compelling case in the public interest that all the land had to be acquired in order to enable a scheme to be put into effect” and rejected this challenge.

Meaning of the Judgement

The judge has ruled that the Environmental Statement was valid, that the public inquiry was not biased and that neither the human rights nor the property rights of the applicants have been breached. Nothing in his judgement rejected the concept of constructing this road, the case for it, the standard proposed, the route taken or the manner of its construction. The judgement has zeroed in only on a procedural error on the DRD’s part in not adequately assessing the impact that the scheme would have on the River Finn and on the River Foyle and taking sufficient steps to ensure that the scheme did not adversely affect these rivers.

As I said earlier, media coverage of the opposition to the A5 before the legal challenge showed that it focused on two issues:

1. The negative impact on landowners, especially farmers, through whose land the road would pass.
2. Whether the road was actually needed, or at least whether improvements were needed on this scale.

It should be noted that today’s ruling has not upheld any of the challenges that impact directly on these concerns. We are, therefore, seeing a successful legal challenge based on a procedural error, not the need for the road or on its route or standard.

The DRD conceded during the legal challenge that if they were found to be in breach of the Habitats Directive then the judge would have “no grounds in the exercise of discretion for not quashing the decision“. In giving the DRD eight days to bring more evidence forward, the judge is therefore saying to the DRD “Tell me why I shouldn’t quash the decision to proceed with this road? Give me a good reason not to“.

I do not know enough about the detail of the case to be able to say how the DRD might answer this. They may put forward additional evidence showing how they have, in fact, complied with the Habitats Directive. This seems unlikely, however, since they would surely have provided this evidence at the legal hearing.

Given that the judge has rejected all the challenges that concern the case for the road, its route and its standard, they may argue that quashing the decision to proceed would be an excessively harsh penalty. They may argue that they can comply with the Habitats Directive by carrying out such an assessment after the event and that any recommendations could be adequately incorporated into the design.

An important point in support of this argument would be that the River Finn is impacted only by the Strabane to Omagh stretch of road, and that stretch of road is not one of the two stretches being built at this point in time. In other words, allowing the the two phases currently planned to proceed will have no impact on the River Finn.

The River Foyle is impacted only by the L’Derry to Strabane stretch of road, with which the DRD wish to proceed now and so this is clearly an issue for this stretch of road. However, neither river impacts on the Ballygawley to Omagh section of road. Since the judgement has rejected every other challenge that has any impact on the Ballygawley to Omagh section of road, the DRD may argue that it would be perverse to quash the decision to proceed with this stretch of road since there is no reason to do so other than the legal technicality that this stretch of road is viewed by the DRD as part of the same wider project as the part that will impact on the River Foyle.

It is also worth noting that nothing in this judgement means that the road cannot proceed at all. The failure to adequately assess the impact on sensitive river systems is something that could certainly delay the project, but with the DRD’s technical expertise, is highly unlikely to scupper the project entirely. It seems, therefore, that the project probably will proceed at some point in the future unless, of course, there is a change of policy by the Northern Ireland Executive in the meantime.

What Happens Now?

Right now the DRD will be coming up with as much evidence as possible on the Habitats Directive issue. The way I see it there are at least four possible outcomes when Justice Stephens revisits the case in a week’s time:

1. The judge may reject any new evidence presented, quash the decision to proceed with both sections of road. At best this would mean the DRD having to carry out a new assessment on these rivers, at worst it could mean a new public inquiry. If the latter, the project could be delayed by a couple of years.
2. The judge may quash the decision to proceed with the L’Derry to Strabane section, as in (1), but allow the Omagh to Ballygawley section to proceed straight away.
3. The judge may accept the DRD’s possible evidence up to a point and allow them proceed with the L’Derry to Strabane section, but only after carrying out further work on the design; and allow the Omagh to Ballygawley section to proceed straight away.
4. The judge may fully accept the DRD’s possible evidence and allow both sections to proceed immediately.

So right now it could go any way – the road could be proceeding to construction within weeks, or it could be mothballed for a few years.

In conclusion, I don’t think either side can claim a victory in this. The AA5A have lost most of their challenge, and the one challenge they won was on a procedural issue and not on any issue that has a material impact on the vesting of farms or the design of the road, the two issues with which they were primarily concerned. The DRD, meanwhile, has been found to be in breach of the law and to have failed to adequately assess the impact on sensitive rivers. The judgement in a weeks’ time will be very interesting. Those involved in the project on the DRD’s side, meanwhile, have a busy week ahead of them.