Posted by: wesleyjohnston | April 8, 2013

Quashed. What now for the A5?

In my last blog post, four weeks ago, I talked about the outcome of the judicial review of the proposed dual-carriageway upgrade of the A5, the road that links Londonderry, Strabane, Omagh, Ballygawley and Aughnacloy. A legal challenge to the scheme had been brought by a group of landowners known as the Alternative A5 Alliance (AA5A). On 12 March the judge rejected 5 of their 6 challenges, but upheld one: he ruled that the DRD had failed to carry out an appropriate assessment of the Rivers Foyle and Finn Special Areas of Conservation under the Habitats Directive.

UPDATE 11 April 2013: I have got some clarification from Roads Service on some elements of this blog, which I have added at the end as a comment in the “Comments” section: under my own name, Wesley Johnston.

At the time of the ruling on 12 March, the judge gave the DRD eight extra days to provide additional evidence. In other words, he didn’t immediately quash the project, but allowed the DRD some time to either come up with evidence that they had, in fact, complied with the Habitats Directive or to provide some alternative plan. Since the DRD themselves admitted during the hearing that they had not complied with the Habitats Directive, their only possible course of action was to suggest to the judge that they carry out a retrospective assessment of these two rivers, and this seems to be what they did.

In my previous blog I outlined the various options that the judge had. These ranged from accepting the additional evidence and letting the whole scheme go ahead, to quashing the decision to proceed in its entirety. Today the judge ruled that the additional evidence was not sufficient and has, in fact, quashed the decision to proceed with both stretches of road. According to the BBC, the judge cited “the potential for a public inquiry and potential scope for legal confusion“. This is presumably a reference to the fact that the road has already passed its Public Inquiry, but yet an assessment under the Habitats Directive would need to be considered at a Public Inquiry. Of all the various possibilities, this is actually the worst-case scenario for the DRD, especially when you consider that the Habitats Directive had no relevance to the Omagh-Ballygawley section of the scheme, since the Habitats Directive only applies to the northerly Derry-Strabane section.

Implications

First, some clarification. Some media reports have implied that the ruling is a rejection of the whole concept of upgrading the A5 via a new dual-carriageway following a new route. It is not. It is vital to understand that this was a ruling against a procedural issue (not carrying out an assessment) rather than a ruling against the concept of the road, its route or its standard (since the road passed the Public Inquiry and all challenges related to this aspect were rejected). What was quashed was the Minister’s decision in July 2012 to proceed with the scheme, not the scheme itself. Contrary to some media reports, today’s ruling does nothing that would permanently prevent the road being built. All it has done is add – considerably – to the timescale. Since the problem was one of procedure, the DRD could choose to repeat the whole exercise, but this time complying with the necessary legislation. They could, of course, still decide to abandon the scheme, but more on that later.

Secondly, the immediate implications. The judge has decided to hold off on actually formally quashing the decision for one week to give the DRD an opportunity to appeal the decision, if they so wish. Their legal advisors will be able to give an opinion on whether there is any point in going down this road, but if they do it could further muddy the waters. The members of the AA5A have been awarded costs (ie the DRD has to pay their legal costs), and presumably all work on the ground (fencing off vested land, site investigations etc) will have to stop (and may even have to be reversed).

Thirdly, the longer-term implcations for the project. The main steps carried out for the A5 were:

  1. Assess options and decide route (2007 to early 2011).
  2. Carry out all required environmental assessments (including Habitats Directive) and produce an Environmental Statement.
  3. Hold a Public Inquiry (May & June 2011).
  4. Public Inquiry Inspector submits his report, but it is not publicly released at this point.  Assuming the Inspector approves the project, the DRD alters the design to take into account any recommendations made. (Mar 2012)
  5. Publication of the Public Inquiry Inspector’s report. The Minister formally decides to proceed by publishing the relevant legal orders (ie, Direction Order; Vesting Order; Stopping-up of Private Accesses Order). (July 2012)
  6. Construction (had been due to begin Oct 2012).

In the case of the A5, the road successfully went through the first 5 steps, a process that took five years. The decision to proceed was announced on 31st July 2012, and the AA5A’s legal challenge was then received on 10th September 2012. Today’s ruling quashing the decision to proceed, and the judge’s comments on his reasons for doing so, suggest that in order to proceed with the road it will now be necessary to hold a new public inquiry, ie the road will have to go back to Stage 2 in the list above. Let’s assume, as a back of the envelope exercise, that carrying out the required additional assessments under the Habitats Directive would take 6 months, and that repeating the Public Inquiry takes the same time as before. In this scenario, today’s decision will have added 21 months to the timescale of the scheme. So the earliest we could now expect the A5 to be ready for construction, assuming the DRD do not abandon the project, is January 2015.

The DRD Minister Danny Kennedy now has two decisions to make. Firstly, within the next week he has to decide whether to launch an appeal. This will be based on the advice of his legal advisors. Secondly, he will need to make a more general decision about whether to press ahead with the A5 in the manner outlined above, or abandon the project. This decision is far from simple, as anyone with a feel for the sheer range of conflicting issues will be able to see.

Wider Implications – Other Road Schemes

Since construction on the A5 scheme will now almost certainly not proceed during the next two years, the DRD are going to have to reallocate a lot of capital to other projects. To date, the DRD has been coping with the delay by putting in place agreements with Stormont and Westminster to hold back funding, but it seems implausible that this could be done for two further years, especially given that there is no guarantee that it will get approved second time around. So it seems likely that some other road schemes will go ahead at relatively short notice. Last year I blogged about the most likely candidates to go ahead at short notice, which I listed as…

…although the first of these suffered a setback two months ago when a revised junction design was rejected at a Public Inquiry, rendering the timescale for this scheme slightly more uncertain now. There are plenty of other worthy projects, including the A6 from Dungiven to Londonderry, A26 dualling north of Ballymena and the M2/M3/Westlink York Street junction, but none of these are developed sufficiently to go to ground at short notice, although the first two are nor far off (the DUP’s Sammy Wilson has named the A6 Dungiven scheme as his favourite). Politicians in the Mid Ulster area could do worse than take this on board if it turns out that alternative schemes are to be considered.

Wider Implications – Jobs

The contractors for the A5 project have already been appointed. They are:

  • Londonderry to Strabane: BAM, Balfour Beatty, FP McCann, ARUP, Atkins
  • Ballygawley to Omagh: Graham, Farrans, Scott Wilson, Halcrow

It is my understanding that their contracts contained a split at the end of the design phase, so that the contract could be ended if the road did not go ahead, so the contractors likely have no option but to accept this turn of events. Nevertheless, in the difficult climate in the construction sector, this is inevitably going to lead to lost jobs/jobs not created. Since the decision was made last July to proceed the contractors have been preparing to commence work, and have been depending on the income it will provide, so today’s decision is going to cause considerable hardship to many people in this sector of the economy.

Wider Implications – Dublin’s Funding

The decision creates a bit of confusion with regards Dublin’s funding. In 2007 Dublin offered £400m to fund dual-carriageway upgrades of the A5 and also the A8 to Larne. For simplicity, it was decided that all Dublin’s money would be allocated to the A5 and that Stormont would fund the A8 scheme itself on the assumption that Dublin’s money would subsidise the A5 in return. The A8 scheme is actually underway as we speak. Meanwhile, Dublin withdrew (or more accurately, indefinitely delayed) its contribution in November 2011. They subsequently promised to pay £21m of the £400m in 2015, and another £21m in 2016. In addition, another small payment was received during the design stage.

If the road now does not go ahead, or is delayed, this muddies the water of whether Dublin’s funding (a) has relevance any longer and (b) would still be made if only the A8 was upgraded. A worst case scenario is that Dublin contributes no further money, and that the DRD will have ended up funding the A8 scheme entirely at its own expense, something that was never their intention.

Wider Implications – To Build, or not To Build

The DRD Minister Danny Kennedy is in an unenviable position. He now faces the choice of whether to press ahead with the A5 project despite all these setbacks, or to call it a day and abandon it. This being Northern Ireland, this is not something that will be decided on purely pragmatic grounds. Here are some of the factors:

  • The Minister’s own party, the UUP, is generally opposed to the A5 scheme since the party seems to see itself as one of the main representatives of Tyrone farmers. The previous party leader, Tom Elliott, was vigorously against the project, seemingly mostly due to its negative impact on the rural community rather than for party political reasons. Mike Nesbitt’s position is not quite so clear.
  • Sinn Féin, who are one of the project’s most vocal champions, have made the A5 into a key East vs West (and hence Unionist vs Nationalist) issue. The project began under the previous Minister, Sinn Féin’s Conor Murphy who spearheaded the project and portrayed it as a necessary part of the process of rectifying what he saw as historic under-funding of the West under Unionist-dominated government. Danny Kennedy, therefore, risks being accused of wanting to terminate the project for this reason.
  • This is not helped by the fact that quite a few Unionist politicians do see the project in these terms. They would argue that Sinn Féin want the project to go ahead for political reasons, not for road safety or journey time reasons and oppose it for the same reason. The Finance Minster, the DUP’s Sammy Wilson, is both one of the road’s most vocal critics and also the man who controls the purse strings at Stormont. There is great potential here for the A5 to become a showdown between the DUP and Sinn Féin, a state of affairs that would not benefit anybody.
  • Until Dublin’s offer of co-funding came in, such a major upgrade of the A5 was not even on the agenda. This suggests that the DRD’s own engineers did not regard it has a high priority. The decision to proceed certainly made sense given that it was effectively “half price”, but it has always had the fundamental weakness of not being quite as justifiable or urgent as other schemes. It would never be said publicly, but I have always suspected that many engineers within DRD do not agree with the level of priority being afforded to the A5 over other schemes.
  • The Alternative A5 Alliance is made up of only a few dozen landowners, whereas there are tens of thousands of people living along the A5. The Minister will want to ensure that he does not give undue weight to the opinions of a small but vocal group of people without taking into account the wishes of the wider community in West Tyrone. After all, infrastructure projects must be primarily motivated by the needs of society as a whole, not those of individuals – otherwise it would not be “infrastructure”.
  • The business community in West Tyrone seems to be very much in favour of the project, as they believe it will boost the local economy. The Minister will be very mindful that Derry and Strabane, two of the communities set to benefit from the A5, have the highest levels of unemployment in Northern Ireland. Any minister who cancels a major infrastructure project in an area of such chronic unemployment can except to receive the wrath of many.
  • Although the Alternative A5 Alliance have argued that the existing A5 should be upgraded, most road engineers agree that this is an impractical option given the type of terrain, the very large number of private accesses, that it would require the vesting and demolition of considerably more private properties than the current option, and that widening the existing road would in all probability make the road more, rather than less, dangerous to road users.
  • The scheme has passed the Public Inquiry, and successfully resisted 5 of the 6 legal challenges against it. The Minister will be aware that, since the scheme failed only on one matter of procedure, there are actually very few obstacles other than time in its way. He would not want to over-play the significance of this decision to the actual merit of the underlying project itself.
  • Finally, the Minister will be conscious that a huge amount of work has already been carried out on the A5 scheme. In July 2011 Roads Service said that the scheme had cost £35m up to that point, and it’s likely to be even more now. Abandoning the project would mean writing off tens of millions of pounds of cash, which has the potential to be seen by taxpayers as a scandalous waste in a time of austerity.

Conclusion

Nobody should envy the Minister. He now has to make a decision that will get him roundly criticised no matter what he chooses to do. Either way, a lot of money and time will have been wasted. A lot of people in West Tyrone will be unhappy, and a lot of other people will be very happy. Nationalist is pitted against Unionist, East is pitted against West. The situation is a mess.

Advertisements

Responses

  1. A superb piece as ever!

    I wouldn’t be quite so sympathetic with the Minister, however. He brought this upon himself.

    The case for the A5 upgrade ceased to make any sense once Dublin withdrew the funding. At that point, the Minister would have had every justification in pointing to his own party’s position on the road and abandoning it “at least until such time as Dublin is able to pay its way”. Sadly, he was too busy in joint meetings with the DUP to follow through on his own party’s line.

    He could quite easily have offered other projects out west, not least on the A6, as consolation. Had he done so then, they would be nearly ready to go now.

    It is sheer incompetence.

  2. I remain puzzled why the dual carriageway from Aughnacloy to Dungannon was completed without notable opposition. The contrast between the reactions to the two projects is startling.

  3. Good write up! I can’t see it ever being complete because at the moment they r. Struggling to get sections one and three on the go! Section 2 is a deferent ball game altogether , at one stage the planned road runs along the river finn less the 100 meters the impact that it will have on this river will be catastrophic ! So in my opinion mr Kennedy should just forget about the scheme! It will be a waste of money, and that money is much needed elsewhere in other departments!

  4. Wesley, you mentioned before that the Habitat directive does not affect the Ballygawley Omagh section, however the catchment for the Foyle starts just a few miles north of the Ballygawley junction, so the vast majority of this section also falls within the Foyle/Finn Basin, in fact the upper reaches of the rivers are more fragile and vital to the Salmon and otters than the lower sections past Strabane.

    Ian, to push ahead with the A5 was an executive not a ministerial decision, so you would agree that the Alliance ministers are equall incompetent? The reality is it was a side deal pay-off to SF by the DUP, just like RPA they can force the minister to impletment a decision he disagress with. For the record did the two Alliance ministers oppose it?

    Charles, the A4 Dungannon to Ballygawley was a death trap, the community was strongly behind the upgrade when local issues were sorted out. and secondly the compensation was much more generous! but cheap in comparison to the farce the A5 is becoming.

    • Windson – yes, but as far as I understand the defined River Foyle and Tributaries ASSI (including the Finn) only extends as far as Omagh. See http://www.doeni.gov.uk/niea/river_foyle_and_tributaries_assi_map.pdf

      • Wesley – although the boundary of the designated site does not extend along the whole river and its tributaries, the site selection features of the site – i.e. Atlantic salmon are protected wherever they occur throughout the catchment and the Habitats Directive will apply to any plans or projects which may impact on them. Moreover the tributaries in the upper reaches of the Foyle system contain many of the spawning grounds for salmon and would be more sensitive to impacts caused by road development – such as sediment release.

      • Thanks for the clarification Chris. That’s very useful info. Wesley

  5. Very informative piece. I live along the A5 and believe me it is not capable of carrying the traffic it already does, never mind the likely increase in the future.
    From an infastructure point of view there can only be huge benefits to the region.
    It seems that the north west will again lose out!

  6. Excellent summation of the situation.

    As someone who uses the A5 up to six days a week and has done so for the past 10 years I agree that the current A5 route is in adequate for the traffic it currently carries, never mind traffic 10 or 20 years from now. Be in no doubt that regarding road safety and journey times, some members of the Alternative A5 Alliance themselves must surely shoulder blame in this regard. For instance, witness the regular tailbacks (at peak hours) caused by tractors holding up traffic, with little opportunity for them to pull in or for motorists behind to safely overtake. You can also regularly observe the mud on the roads caused by these near these farms by the roadside. It boggles the mind that in 2013 this is a regular occurence on a so-called “A” road which leads to our second city.

    Anyone who has ever driven from Dublin or Belfast to Omagh, Strabane or Derry/Londonderry can’t deny the deterioration of the road after the Ballygawley Roundabout. On my last trip, at night time during one section it was barely possible to even make out road markings. I hate to bring the East/West argument into it but it can’t be denied. Contrast the A5 as it is to the A2 towards Coleraine for more evidence.

    This whole shambles is deeply frustrating for people living and working in the area. Whether we like it or not, Northern Ireland is a heavily car dependent country, and given Translink’s equal incompetence and lack of invention, particularly in the West of the province where the train lines were decimated decades ago, that’s not going to change any time soon.

    The A5 WTC is a necessity infrastructure upgrade to bring the West into the 21st century. To deny it as Mr Justice Stephens and the AA5A have done is to deny progress.

  7. UPDATE 11 April 2013. I have been able to get some clarification from DRD Roads Service on a few points in the above blog, which I summarise below. Wesley

    1. As we know, at the initial court hearing on 12th March, the judge indicated that he was minded to quash the Minister’s decision to proceed with the road, since an Appropriate Assessment had not been carried out under the Habitats Directive, but gave them 8 days to provide further submissions. In the blog above I said “their only possible course of action was to suggest to the judge that they carry out a retrospective assessment of these two rivers, and this seems to be what they did.” However, it’s now been clarified Roads Service did *not* provide any further information to the court. Nor did they make any attempt to carry out the Assessment within that time period. However, they are carrying it out NOW and it will, in due course, be put out for public consultation.

    2. In terms of the delay to the project, Roads Service have clarified that it is not clear whether there will need to be a new Public Inquiry. This is because the Environmental Statement (which was scrutinised at the Public Inquiry) is not specifically influenced by the Appropriate Assessment under the Habitats Directive. Roads Service are now assessing the Environmental Statement to see if it is still valid. If not, they might have to issue an Addendum which might then require a Public Inquiry. Since the original Environmental Statement passed its Public Inquiry, their view would be that the original Environmental Statement does not need to go back to an Inquiry in its entirety. In my blog above I calculated, as a “back of the envelope” exercise, that the delay could be around 21 months. From Roads Service’s clarification it seems the delay could be anywhere between 6 months and 24 months, depending on how things unfold.

    3. Roads Service are keen to point out that the judge found against only one procedural issue, and reiterate that the scheme itself is intact, and has survived its public inquiry, and that all challenges made against its design, route, standard or form have been rejected. So there is no reason why the road cannot go ahead once the Appropriate Assessment under the Habitats Directive is concluded.

  8. Excellent blog, only discovered it tonight.

    Time for people to stand up and show their support for the proposed new A5 as the 18 farmers and save our planet hippies have had their fair share of media coverage…

    Darren

  9. Good work Wesley at last some clarification, I live along the present road in a village between Newbuildings and Strabane,if you chance to drive past you will notice union flags flying from lamposts and should you stop you will find growing disbelife turning to anger as contractors remove fencing etc.rected for the new road .People in the villages suffer constant traffic which snarls up local buisness,not to mention number of locals who lost their lives tragically on this sectoin of road,recently two local women were knocked down at traffic crossing in Magheramason.
    ,this unionist /nationilst divide your article refers to is overplayed.Why elect an assembly if a group of wealthy people and a judge can dictate like this or at the recent John Lewis development in Lisburn. So lets hope for progress and a vision of Danny piping in the spade to dig the first sod.

  10. Did you know Wesley that only one third of the 18 people who took the challange were farmers, the rest were a cross section people who opposed the A5 for various reasons? So to say that the Alternative A5 Alliance is only made up of a couple of dozen landowners is perhaps misrepresenting the realilty of the situation. Plus, before the public inquiry took place there were twenty five thousand letters of objections received by the drd to the scheme, that would hardly represent a disgruntled small number of farmers/landowners. In terms of balance i think its only fair to point out some of the facts around the project and try to remain as objective as possible.

    • Thanks for the clarification. So the majority were not farmers. A large number of objections would be expected on a project of this nature. In my experience people who aren’t against a scheme tend not to engage much with the public process, so inquiries tend to be dominated by opposition. You need to be careful, therefore, not to assume huge public opposition based on there being a lot of objections at the inquiry, especially since the scheme passed the inquiry after the objections were scrutinised.

  11. […] details on the possible implications of this ruling can be found on Wesley Johnston’s article in which he states that the ruling is against a procedural issue regarding a breach of the habitats […]

  12. Thanks Wesley, just discovered your website.

    I live in the west and work in Belfast. This decision has been incredibly frustrating. I can’t get work in my field in Tyrone but I am hopeful that there will be opportunities in Craigavon or Derry/Londonderry in the future.

    I am angry with the farmers and the department.

    The farmers for their selfishness and the department for it’s uselessness to get the job done. Who is at fault for the failure to comply and will they be sacked? I doubt it.

    The road is unable to cope with the traffic as is. It is dangerous and some of the greatest danger is the mix of high volumes of commuters and local slow moving (and often inconsiderate) agricultural vehicles.

    We could all benefit from the time knocked of journeys opening up jobs for people in other towns. From Omagh it would open up possible jobs in major towns – Derry, Letterkenny, Monaghan, Craigavon, Lurgan, Dungannon, Strabane, Lisburn would all be a much easier commute with only Belfast having the “sprucefield bottle neck” to make it slightly more awkward.

    Good infrastructure is vital to our economic future particularly if our young people are to stay in the west while getting work elsewhere. The dense population areas of the north will always have more jobs and we need easier access for people in all industries.

    It’s also a disgrace that the a5 alliance celebrate denying people good work at a time of recession. I appreciate it’s an emotional issue for them as they have the Irish madness for the land, but can’t they see they damage their own community?

  13. Hi Wesley

    In addition to the projects you have mentioned the DRD could spend the money on other things than building roads. More specifically rail: speeding up the improvements to the Derry line which have been put on quite a slow timetable, and ordering more carriages (as already contracted for in the CAF 4000 contract). The building of passing points on the Derry/Londonderry line to increase frequency.

  14. I used to travel regularly to meetings in Dublin (from Derry). Although other participants travelled from all parts of the island I had the longest journey times and also was one of the few with no alternative to road travel. It is ridiculous to suggest that a factor like ths will not feature in future investment decisions.
    It’s not rational to blame the landowners for taking a position of pure self interest, that’s human nature,but it is rational to expect govt to protect the interests of the wider community. That manifestly hasn’t happened. Nor is it likely hat there will be any consequences for the culpable.

  15. This is a total debacle. We have been promised this corridor for over 30 years and as far as I am concerned, to hell with the farmers. The rest of the community need this to earn a living.

    I really hope that the process gets back on track and we can get a group representative of the true feeling of the area (99% pro-A5) to take on the farmers and others who do not care about us being an economic backwater.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Categories

%d bloggers like this: