Marc Willers KC and Acland Bryant of the Garden Court Environmental Law & Climate Justice Team acted for Alternative A5 Alliance, instructed by Ciaran O’Hare at McIvor Farrell Solicitors.
See coverage in BBC News: ‘A5 ruling shows impact of Stormont climate change legislation’
In the High Court in Belfast, Mr Justice McAlinden handed down his judgment in the important case of the Alternative A5 Alliance v the Department for Infrastructure, and in doing so, quashed the decision of the Department for Infrastructure (DfI) to proceed with the controversial new A5 road project, which has been described as the ‘single most extensive infrastructure project in the history of Northern Ireland’.
Marc and Acland are delighted for their clients, the members of the Alternative A5 Alliance (AA5A), as the judgment vindicates their position and the arguments made before the Judge in a five-day hearing earlier this year.
The A5 road project had been the subject of a careful and detailed examination by the Planning Appeals Commission (PAC). The PAC made a number of recommendations, including that the DfI should not proceed with the project: unless it could comply with its statutory obligations under the Climate Change Act Northern Ireland (CCANI) 2022 and be satisfied that the emissions targets set by the CCANI 2022 could be met; and until the Department of Agriculture, Environment and Rural Affairs (DAERA) had published a Climate Action Plan for 2023 to 2027.
The PAC also recommended that any decision to proceed with the project should be time-limited, given the fact that the landowners whose land would be developed had been left in limbo for many years.
The DfI made its decision to proceed with the project before the DAERA had published a CAP and without first considering the PAC’s recommendation that it place a time limit on the construction of the road. It also did so having taken account of new environmental material that it had not disclosed to the public and that had not been the subject of independent consideration.
The Judge concluded that, in the absence of an approved CAP, the DfI needed to provide the Court with cogent evidence demonstrating that the project would not undermine the interim and net zero greenhouse gas (GHG) emission targets laid down by the CCANI 2022 and that it had failed to do so.
Commenting on the duty laid down in the CCANI 2022 the Judge said:
“Section 52 does not prevent a major infrastructure project which is a source of significant greenhouse gas emissions being devised, promoted, constructed and put into operation. But what it does clearly rule out is the construction and operation of such a major project in the absence of robust planning, synchronisation and co-ordination between all NI government departments to ensure that the project fits into the plans, strategies and policies which map out a realistic and achievable pathway to achieving net zero by 2050.”
The Judge also concluded that the DfI had breached the domestic environmental impact assessment regulations by failing to provide the public with new and important environmental information that it had produced in relation to the GHG emissions arising from induced trips by those travelling in the Republic of Ireland en route to the new A5; so as to give the public the opportunity to consider that information and comment upon it and the methodology underlying it.
Finally, the Judge concluded that the DfI had failed properly to consider the PAC’s recommendation that any decision to proceed should be time limited – and to consider the impact of the project on the human rights of the AA5A members.
As a consequence, the Judge ordered that the DfI’s decision to proceed with the A5 road project should be quashed.
The wider significance of this judgment cannot be overstated. The Judge’s ruling sets out that all government departments in Northern Ireland should comply with climate change duties laid down in the CCANI 2022 when making decisions in the future about projects and policies which will result in significant greenhouse gas emissions. See BBC News coverage: ‘ ‘A5 ruling shows impact of Stormont climate change legislation’.
AA5A were represented in the statutory review proceedings before Mr Justice McAlinden by Marc Willers KC and Acland Bryant BL, of Garden Court Chambers, instructed by Ciaran O’Hare at McIvor Farrell Solicitors.
