Judicial Communications Office
Tuesday 12 March 2013
COURT FINDS IN FAVOUR OF ALTERNATIVE A5 ALLIANCE’S CHALLENGE
Summary of Judgment
Mr Justice Stephens, sitting today in the High Court, found that there had been a failure by the Department for Regional Development to carry out an appropriate assessment of the impact of the A5 dual carriageway scheme on the River Foyle and River Finn special areas of conservation. He indicated that subject to any submissions in relation to the exercise of discretion the relief that he was minded to grant was to quash the Minister for Regional Development’s decision to proceed with the A5 Western Transport Corridor dual carriageway scheme.
On 31 July 2012 the Minister for Regional Development (“the Minister”) announced the decision to construct two stretches of the 85 km off-line A5 Western Transport Corridor scheme: the first between New Buildings and north of Strabane and the second from south of Omagh to Ballygawley. He announced that the timing of the remainder of the scheme would be dependent on the availability of funding through the Northern Ireland Investment Strategy 2011-2021, further contributions from the Irish Government and subsequent budget settlements beyond 2015.
A group known as the Alternative A5 Alliance sought to challenge this decision in court. The group proposed an alternative scheme made up of a combination of by- passes and overtaking lanes.
The applicants challenged the Minister’s decision on a number of grounds:
• Apparent bias of inspectors at the Public Inquiry – The applicants sought to set aside the inspectors’ report on the basis that there was apparent bias in that they arrived at the premises of an objector for a site inspection driven in a car by employees of the Department. The court heard that one of the employees was a person who was assigned to assist the inspectors in the administration of the inquiry and who had had no other involvement in the project. Evidence was given that some of the locations being visited were remote and difficult to find and officers of the Department who were not witnesses to the inquiry but who knew the area were used to assist the inspectors. None of the objectors visited had protested at the time. Mr Justice Stephens considered that a fair minded observed would not conclude that there was a real possibility that the inspectors were biased and declined to set aside the inspector’s report on that ground.
• Breach of obligation to send a description of/information about the scheme to the Irish Government – The Environmental Impact Assessment Directive requires that where a Member State is aware that a project is likely to have significant effects on the environment in another Member State, the Member State in whose territory the project is intended to be carried out shall send the affected member State a description of the project, its possible transboundary impact and information on the nature of the decision which may be taken. Mr Justice Stephens rejected the suggestion that this had not happened and said that it was “readily apparent that the Irish Government was a key partner in taking the scheme forward”. He referred to the cross-border A5 Technical Group which consisted of senior members of the Department and the National Roads Authority in the Irish Republic and said he was content that the Group was able to keep their respective Government Departments informed of the project. That if there was any breach of this obligation it was of an entirely technical nature elevating form over substance. Accordingly if there was such a breach he would have no hesitation in exercising discretion by declining to grant any relief to the applicants in relation to this ground.
• Failure to carry out an appropriate assessment of Rivers Foyle and Finn Special Areas of Conservation under the Habitats Directive – The Directive requires that any plan or project likely to have significant effects on the management of special areas of conservation be the subject of an appropriate assessment unless the risk of significant likely effects on the sites can be excluded on the basis of objective information. The Department’s consultants carried out a habitats regulations screening assessment to determine whether the risk of significant likely effects on the sites could be excluded. The screening report concluded that the proposed scheme was unlikely to lead to significant effects given the remedial measures that could be put in place and it was on that basis that the Department decided not to have an appropriate assessment of the impact of the schemes. The Loughs Agency, however, gave evidence to the Public Inquiry as to a number of concerns around matters such as increased levels of silt in the Rivers, increased levels of salt, loss of habitats, the lack of emergency pollution bunkers, increased flows of water into the River through inadequate drainage a lack of maintenance of devices aimed at reducing water flows, the risk of polluted ground water entering the Rivers from an old municipal land fill site and old industrial sites near Strabane, impact on salmon and their habitat, and pollution. Also the Loughs Agency gave evidence that whilst schemes such as this could be carried out appropriately provided that they were properly engineered they had experience of schemes in Northern Ireland that had been “very very bad for the environment” and which had had “very very significant impacts.” In order to determine whether the scheme had been properly engineered detail was required in relation to the remedial measures. That detail was absent and significant effects could not be excluded. This evidence was not challenged at the Public Inquiry. Mr Justice Stephens said 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. Accordingly that an appropriate assessment should have been but had not been carried out under the Habitats Directive. Accordingly that there was a breach of the Habitats Directive in relation to both the River Foyle and River Finn special areas of conservation. He stated that it had been accepted by the Department during the hearing that if there was a finding of a failure to carry out an appropriate assessment in breach of the Habitats Directive that there were no grounds in the exercise of discretion for not quashing the decision. On that basis the judge indicated that he was minded to make an order quashing the decision but in view of the fact that at the hearing the submissions in relation to the exercise of discretion were not informed by the decisions that he had made in relation to all the other areas of challenge (which he now rejected) he afforded the department an opportunity of either confirming the previous concession in relation to the exercise of discretion or to make further submissions.
• Failure to comply with the Strategic Environmental Assessment Directive – The applicants contended that the Department had breached the Directive by not carrying out an environmental assessment which would have considered reasonable alternatives, including the one proposed by the A5 Alliance. Mr Justice Stephens considered that the acceptance in principle by the Northern Ireland Executive in 2007 was that the upgrade to the A5 would be by way of a dual carriageway excluding any alternatives. He said that after the plans and programmes were published which gave affect to this decision it was not plausible for any public servant to have given consideration to anything other than a dual carriageway and this effectively ruled out any other options. That an environmental assessment ought to have been but had not been carried out giving consideration to alternatives. However he declined to grant any relief to the applicants given that the plans and programmes had been published years ago and there was no challenge to them by the applicants at an earlier and therefore at an appropriate time. Indeed 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.
• Inadequacy of the Environmental Statement under the Environmental Impact Assessment Directive – The scheme required to have an Environmental Impact Assessment under the Directive. The Department had produced an Environmental Statement in compliance with its obligations and a public inquiry had been held. The applicants contended that the Inspectors at the Public Inquiry had found that the environmental statement was inadequate. They also claimed that the scheme that was subject to an environmental statement and which was scrutinised at the Public Inquiry was different from the phased scheme for which consent was given by the Minister. Mr Justice Stephens rejected the applicants’ contention that the Inspectors had found that the environmental statement was inadequate. He said 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 said he was satisfied that there was a vast amount of detail in the environmental statement, and those concerned were able to read and comment on it including giving evidence at the inquiry. The judge noted that the Department had proceeded on the basis that there are two projects – one in Northern Ireland and one in the Republic of Ireland. The project in the Republic of Ireland has been deferred and the two projects are not dependent on each other. The applicants contended that the deferred section of the scheme in Northern Ireland may never be constructed. Mr Justice Stephens rejected that contention and said there was a clear longstanding commitment by the Northern Ireland Executive and the Irish Government:
“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.”
Mr Justice Stephens added that if, in the event, the environmental impact assessment is out of date by the time the deferred sections are brought forward then a further environmental impact assessment can be undertaken in connection with the process for making Vesting Orders in relation to the deferred sections.
• Breach of the applicants’ property rights and other rights under the ECHR – The applicants submitted that before the Department makes a decision to vest or compulsorily acquire property it should be demonstrated that there is a reasonable prospect of the scheme going ahead. They claimed that the Department has not been able to ensure that all necessary resources are likely to be available for the deferred sections within a reasonable time. The Department contended 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. The judge accepted this and said that the public interest in this scheme was of major significance.
Mr Justice Stephens rejected the overwhelming majority of the applicants’ grounds of challenge. One of the applicants’ grounds was upheld as the judge held that an appropriate assessment under the Habitats Directive should have been but had not been carried out. On that basis he indicated that he was minded to quash the decision of the Minister but enabled the Department to make further submissions in relation to the question as to whether the breach of the Habitats directive should lead in the exercise of discretion to the Minister’s decision being quashed.
Judicial Communications Office
NOTES TO EDITORS
1. This summary should be read together with the judgment and should not be read in isolation. Nothing said in this summary adds to or amends the judgment. The full judgment will be available on the Court Service website (www.courtsni.gov.uk).
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