High Court judge rules A5 in breach of climate legislation and quashes Stormont approval of £1.7bn Derry road scheme

Mr. Justice McAlinden held that the decision to give the go-ahead for the dual carriageway scheme was rendered irrational due to a lack of evidence it would not prevent Northern Ireland meeting its net-zero target by 2050.

In a challenge mounted by a group of local residents and landowners, he also identified a failure to properly show consideration of human rights issues in not imposing a time limit for construction.

With 57 deaths recorded on the A5 since 2006, the judge acknowledged it was likely that delays in progressing the development will coincide with further loss and life and serious injury in the existing route.

“I am acutely aware that this decision will bring significant, fresh anguish to the doors of those who have been injured and maimed and those who have lost loved ones as a result of road traffic accidents on the existing A5 road,” he said.

“However, the decision to proceed with the scheme must be taken in accordance with the law and the principle of the rule of law cannot be subverted, even if the motivation for doing so is to achieve what is deemed to constitute a clear societal benefit.”

Former Stormont Infrastructure Minister John O’Dowd gave the go-ahead for the 53-mile development between Derry and Aughnacloy, Co Tyrone in October last year.

The project, which forms part of a proposed key cross-border business route linking Dublin and the north west, has already been held up by previous legal actions.

An umbrella group known as the Alternative A5 Alliance brought fresh judicial review proceedings against the decision to authorise construction work.

One of their grounds of challenge involved claims that the approval breached a goal in the Climate Change (Northern Ireland) Act 2022 to get to net-zero greenhouse gas emissions by 2050.

The court heard that a Planning Appeals Commission (PAC) recommended not proceeding with the scheme unless the Department was satisfied it would not undermine those goals.

Lawyers for the Alliance argued that it was irrational to give the go-ahead for the upgrade due to the potential adverse impact.

It was further contended that residents exposed to potential vesting orders have suffered a violation of their human rights, with no time limit for completing the development.

Counsel representing the Department for Infrastructure disputed the allegations of having irrationally approved the scheme without a proper action plan to ensure carbon emission targets are met.

Authorising the upgrade will not jeopardise Northern Ireland’s net zero climate change goals, he insisted.

Backing for the project also came in submissions made on behalf of the campaign group A5 Enough is Enough.

Formed after Tyrone Gaelic footballer John Rafferty, 21, was killed in October 2022, the group told the court of their frustrations at the repeated delays in improving ‘a death trap of a road’.

Their barrister alleged that the legal challenge to a dual carriageway scheme with the potential to save hundreds of lives involved ‘private interests disguised in the cloak of environmentalism’.

Mr Justice McAlinden was told that rights to life and ensuring public safety on a stretch of road where 57 people have been killed since 2007 outrank any alleged breach of privacy.

But he held that the Department had failed to address the Article 8 human rights issues identified by the PAC.

The judge also highlighted how the Climate Change Act imposed a duty on all Stormont departments to operate in a way to help achieve its goals.

He said the A5 upgrade decision was based on an aspirational assumption that as a priority project for the Executive it could proceed while also achieving the legislative targets.

“This evidential lacuna renders the Department’s decision non-compliant with the duty imposed by section 52 (of the Act) and it renders the decision irrational as it is a decision which was taken in the absence of an adequate evidential base,” he found.

Mr Justice McAlinden confirmed: “The decision and orders made thereunder must be quashed due to the breach of section 52 of the 2022 Act, the failure to demonstrate any consideration of the human rights issues raised by the PAC when rejecting the recommendation that permission should be time-limited.”

He stressed that the ‘shortcomings and shortcuts in the decision making’ are capable of being remedied.

The judge added: “But irrespective of the difficulties in overcoming these shortcomings, concerted efforts must be made by all concerned so that sooner, rather than later, a new and safer A5 dual carriageway may come into operation and the long list of names of those who have perished on that road will not be added to.”

Following the ruling SDLP West Tyrone MLA Daniel McCrossan described it as a ‘devastating outcome for the families and communities who have long campaigned for this life-saving infrastructure’.

He called for the Minister for Infrastructure to come to the Assembly to outline what steps she will take to ensure the A5 is delivered without any further delay.

Mr. McCrossan said: “Since the A5 was first announced in 2006 as a flagship Executive project, more than 50 people have lost their lives on this road, with thousands more seriously injured or left with life-altering injuries.

“No part of this road is safe; every single section has claimed lives. And every day that passes without progress puts more people at risk.

“The new A5 is absolutely essential for public safety, and the Minister must fight tooth and nail to deliver this.”

“Today’s ruling is a bitter disappointment for bereaved families and campaigners. But it must not be used as an excuse to shelve this project. The Department and the Executive must urgently take whatever steps are necessary to address the legal issues and finally deliver this road.”