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…

• A6 Randalstown to Castledawson
• A55 Outer Ring at Knock, Belfast
• A31 Magherafelt Bypass

…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.