A6 legal challenge – what now?

History of the Scheme

There has been pressure to upgrade the A6 for many years. The Moneynick Road east of Toome is the lowest-standard of road between Belfast and Derry. An upgrade has been planned since at least 1964. There has been enormous political pressure over many years from the North West to upgrade the road.

TransportNI intends to upgrade the A6 to dual-carriageway from the end of the motorway at Randalstown to Castledawson roundabout. Half way along this route is Toome, which already has a dual-carriageway bypass. Hence the scheme is actually in two parts – Randalstown to Toome, and then Toome to Castledawson.

Various routes were considered, especially from Toome to Castledawson which passes through environmentally sensitive land west of the River Bann. Eleven routes were investigated for this section, but the preferred route was chosen after a public consultation in 2005. The maps below show the chosen routes (existing Toome Bypass in black).

Preferred routes for A6 dualling scheme

A public inquiry was held in November 2007 which approved the scheme in this form. There then followed a long period of inaction as the scheme repeatedly failed to reach the top of the funding pile (and an argument about one junction rumbled on from 2009 until 2015). Finally funding was granted in 2015.

Progression towards construction

Both schemes went through the planning process separately with separate legal documents (such as the Vesting Order, Direction Order, Environmental Statement). However, a single construction contract was awarded to Graham/Farrans joint venture in May 2015. The contract contains a break clause between the design and build components that means that it is contractually possible for the design to be completed but the road then not proceed to construction, despite the tender award. The design was completed and construction was due to get underway in October 2016.

Opposition

Chris Murphy, an ornithologist and one of a number of opponents to the scheme, launched legal action against the western half of the scheme (Toome to Castledawson) in late September 2016. It is probably best left to the opponents to explain why they are opposed to the scheme, but to me it seems to centre around two issues:

1. That the route takes the road through countryside that was home to poet Seamus Heaney, including areas that feature in a number of his poems. The route also passes very close indeed (approx 100 metres) to his former home, Mossbawn. The opponents believe that this land is therefore culturally sensitive and that construction of a dual-carriageway is incompatible with this.
2. That the route passes through environmentally sensitive land west of the River Bann, including an area used by over-wintering swans.

It should also be said that although the opposition was widely publicised this year due to construction getting underway, the same issues were raised at the public inquiry back in 2007.

TransportNI would say that the issues were indeed taken into consideration at both the planning stage and in the inquiries.They would say that these issues are not the only ones that have to be considered and they they have to be balanced against a range of other considerations that are not all compatible with each other. They say that the route chosen represents the best compromise between the conflicting needs of the economy, road safety, the travelling public, local residents, construction cost, accessibility, the environment and cultural heritage.

Fundamentally, the two sides do not agree on this point. As I explore in my book on the Belfast Urban Motorway, it is almost impossible to objectively balance issues that fundamentally differ in substance in a meaningful way.

No legal challenge has been raised against the eastern part of the scheme (Randalstown to Toome) though it has to be said that the opponents are not a homogenous group and some (e.g. Friends of the Earth) seem to be opposed to road-building more generally, in cases where they believe the schemes are environmentally unsustainable, and this does seem to apply to the A6 more widely than just the section in question. (They can correct me if I am wrong in this.)

Legal Challenge

The legal challenge was an application for a “judicial review”. A judicial review is where a judge examines the action of a body (in this case, the Department for Infrastructure) to see whether that action compiled with relevant law. This is quite a narrow process. So for example, a judicial review would not explore whether a road is justified in a general sense – that’s an issue for the public inquiry. But it could look at, for example, whether the legislation around how environmental assessments should be carried out was followed while the scheme was being designed.

However, it would waste a lot of time if everybody could request a judicial review about anything. So the court first of all has to decide whether there is an arguable case – this is called “applying for leave”. This is what has occupied the courts for the past two months, and which was concluded by today’s decision.

Mr Murphy argued six possible points on which he believed the Department may not have complied with the law. Today the judge ruled that he did not have an arguable case on five of these points, but that he did have an arguable case on one – whether the environmental assessments carried out under the Habitats Directive complied with law. The Habitats Directive is an EU law that places a requirement on member states to protect the environment, in this case the area around Lough Neagh and Lough Beg. The UK is still in the EU, and so the Habitats Directive applies to Northern Ireland.

The judge seems to be concerned that, while various assessments have been carried out for these Lough areas during the years that the scheme has been in planning, it’s not clear which, if any, of these were intended to meet the requirements of the Habitats Directive. He said:

“The court is left wondering about the impact or otherwise of the checks being carried out. … The question relates to whether the checks, if they had produced a negative outcome in the sense of a conclusion there would be an adverse impact being demonstrated… would this have led to the existing scheme being abandoned?”

He went on to say that the court may well become satisfied that this is not actually an issue, but that it is worth exploring the point. So it is important to stress that the judge has not answered the question he raised. He has merely said that asking the question is justified. The leave for a judicial review was therefore granted.

What happens now?

The next round will be a legal hearing to look at this question of the legality of the various environmental assessments. A judge will then probably reserve judgement (meaning they’ll go away and think about it) and then make a ruling at a later date. I am told that the hearing would be likely to begin in January, but that an outcome may be a number of weeks after that. It is hard to know more precisely than this.

Can construction begin?

Although some preliminary site works are underway under a separate contract (e.g. archaeological works) the main contract was put on hold pending the decision of the court case. Since the legal challenge was only made to the section west of Toome, a case can be made for proceeding with the section east of Toome that is not the subject of the challenge: particularly since this section is currently the worst in terms of road design and safety, and probably the most needed.

The Minister is keen to do this if possible and said today that he “will now explore our options for commencing construction on the unchallenged section of this project.” Why is it not straightforward? Two reasons.

Firstly, there is only one construction contract so reducing the scope of the works would have big implications for the contractor, who would have planned their manpower, logistics, raw materials, site yards etc with a two-part scheme in mind. They would also likely want to revisit the agreed fee since the economics of construction would change.

Secondly, the fact that Chris Murphy only challenged one part of the scheme is not the end of the matter. If the court believes that the possible breach of legislation on the Habitats Directive also affected the assessments on the eastern part of the scheme, they could decide to quash the legal orders for the entire scheme, not just the western portion, on the grounds that the eastern bit, too, did not comply with legislation.

Tonight one of the Minister’s advisors seemed very confident that work could get underway on the eastern portion, so perhaps the Department has already established their position on this.

Possible outcomes

These range from best-case to worst-case. (As this is a roads blog, “best-case” means the road going ahead as planned. If you disagree, simply swap the words “best” and “worst” and read in that manner.)

1. Best-case scenario: The judicial review finds that in fact the Department for Infrastructure did comply with legislation and the concerns are unfounded, i.e. that the environmental assessments are sufficient to meet the requirements of the Habitats Directive and no laws have been broken. Implications: (1) construction on both sections could get underway as planned either straight away, or early in 2017. (2) road is built as planned, on the route planned. (3) The Department would be vindicated.
2. Worse scenario:  The judicial review finds that the environmental assessments did not comply with legislation but that this failure was limited to the western portion of the scheme. Implications: (1) construction on the Randalstown-Toome section could get underway early in 2017 as planned. (2) TransportNI would have to carry out new environmental assessments for the Toome-Castledawson stretch. (3) There may have to be a new public inquiry, meaning this stretch would be unlikely to get underway for at least a further 2 or 3 years and could even require a different route. (4) Mr Murphy would be vindicated and questions would have to be asked within TransportNI about the inadequate assessments.
3. Even worse scenario: The judicial review finds that the environmental assessments did not comply with legislation on both parts of the scheme. Implications: (1) All construction would halt, and the road would not be built. (2) TransportNI would have to carry out new environmental assessments for the entire scheme. (3) There may have to be a new public inquiry, meaning this work would be unlikely to get underway for at least a further 2 or 3 years. (4) Unspent cash would revert to the Executive and could be reallocated to other road schemes. (5) Again, Mr Murphy would be vindicated and more serious questions would have to be asked within TransportNI about the inadequate assessments.
4. Worst-case scenario: In this scenario, the judicial review finds that not only did the environmental assessments not comply with legislation on both parts of the scheme, but that the same procedure was used on other road schemes (e.g. the A5) in which case we could see multiple road schemes halted. In such a scenario the forward planning schedule for TransportNI could the thrown into disarray. Thankfully this scenario is unlikely, especially given the care that has gone into the new assessments for the A5, but is nevertheless a possibility.

Other points of note

A few other points have emerged from this situation that deserve a brief mention:

• Some people whose properties are being vested are currently in the process of purchasing new homes and arranging to vacate their properties. If the legal orders for the scheme are quashed, then this process is thrown into confusion as these people will be left in limbo, potentially with house purchas contracts signed, and plans made but no money to follow through on the purchase. Anybody in this situation deserves special attention as this would be very distressing.
• A large number of jobs in the civil engineering sector are dependent on the scheme going ahead. If the scheme was halted, then there will inevitably be some people who will lose their jobs (temporary as well as permanent contracts) as well as the impact on the construction sector locally, through no fault of their own.
• The judge acknowledged that the implications go well beyond the confines of the legal challenge. He said “There’s substantial public interest involved in a case like this…. Stopping a major road project is a matter of considerable importance.” The First and Deputy First Minister today made the point that it has taken two months simply to decide whether the courts will even hear the challenge, and in a scheme of this importance that is a significant and financially very costly delay. They said “No one will dictate to judges how they decide cases but we are alarmed by the time it often takes to hear cases and the time it takes to obtain any decision.” This is surely a valid point.

Public Response

Today on Twitter a large amount of anger was apparent from people in the North West at the decision. This anger stems from the feeling that roads to the North West have been neglected for many years (which is objectively true) but also frustration that in recent years the only roads that have been subjected to legal challenges of this nature have been roads serving Derry. The anger was directly mostly towards Chris Murphy and other opponents of the scheme, but also towards Stormont which they perceive as being complicit in the alleged neglect of the North West.

While acknowledging all these reactions, I think it is important to reserve judgement on where to apportion “blame” until the judicial review is concluded: because if the judge rules that the environmental assessments have not been carried out lawfully, then the blame for such a failure would have to lie squarely within the Department for Infrastructure and not with Chris Murphy or any of the opponents. Such a scenario would vindicate their legal challenge and blaming them would be unfair.

The Minister seems confident that he will win the case, i.e. that we will have the “best-case scenario” above. But we shall have to wait until the new year to find out.

Advertisement