Delivering judgment for the High Court, Mr Justice Gerry McAlinden stated that he was aware that his decision would bring “fresh anguish” to those affected by accidents on the existing A5 road and that one of the primary justifications for the construction of the new road “is that it will be much safer than the existing road”, but that 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”.

Marc Willers KC and Ackland Bryant appeared on behalf of the applicants, instructed by McIvor Farrell Solicitors. Paul McLaughlin KC and Michael Neeson appeared on behalf of the respondent instructed by the Departmental Solicitor’s Office.

Stephen Toal KC and Plunkett Nugent appeared on behalf of Niall McKenna, Michael Kerr, Grainne Donnelly, Barbara Ward, Benny Hurl, Damien Harvey, Seamus Marlow, Colin Mullin and Sean Quinn as committee members of the Enough is Enough campaign group, the interested parties, instructed by Conor Sally & Co. Solicitors.

Background

The applicants, members of the Alternative A5 Alliance (AA5), applied by way of judicial review for an order pursuant to Article 67BA of the Roads (Northern Ireland) Order 1993 (as amended) quashing inter alia the decision of the Minister for Infrastructure and/or the Department of Infrastructure (DFI) dated 2 October 2024 to proceed with the first phase of the A5 dual carriageway.

The High Court

The applicants’ first primary ground of challenge alleged that in the absence of a Climate Action Plan (CAP) and any relevant sectoral plans, the DFI by deciding to progress the A5 scheme failed to demonstrate compliance with its duties under s.52 of the Climate Change (Northern Ireland) Act 2022 aimed at ensuring greenhouse gas emissions targets are met in Northern Ireland.

Mr Justice McAlinden considered that s.52 is “inextricably linked” to sections 1, 3 to 5 and 24 of the 2022 Act and should be interpreted in a manner which best supports the achievement of the goal at the heart of the provisions, being the requirement for Northern Ireland not to exceed the carbon budgets set and to achieve reduction targets for 2030, 2040 and 2050.

The court was satisfied that s.52 clearly rules out the construction and operation of a major project like the A5 scheme in the absence of robust planning, synchronisation and coordination between the Northern Ireland governmental departments to ensure that the project fits into all plans, strategies and policies which map out a realistic pathway to achieve the goals of the 2022 Act.

The court considered that in order to comply with its s.52 duty, the DFI needed to provide cogent evidence that its decision had been made following such planning and coordination, and that a finalised, agreed and approved CAP would be one obvious source of such evidence. In the absence of a finalised CAP, evidence would have to be garnered from other sources such as the Department for Agriculture, Environment and Rural Affairs (DAERA), but the DFI’s decision did not reference any such evidence being provided by DAERA.

As such, the court identified an evidential lacuna rendering the DFI’s decision non-compliant with its duties under s.52 and irrational as it was made absent an adequate evidential base, noting that DFI based its decision “on the aspirational assumption that as the Executive regarded this as a priority project, accommodation would be made to ensure that the DfI could proceed with the project and at the same time the Climate Act (Northern Ireland) 2022 targets would be achieved and the budgetary allowances would not be exceeded”.

The court considered a further ground of challenge alleging that a DFI decision not to assess greenhouse gas emissions from transboundary vehicle journeys which would be induced by the scheme between Northern Ireland and the Republic of Ireland on the assumption that they would be “marginal” meant that the DFI did not have “full information” at the time the decision was made and therefore, did not comply with the Environmental Impact Assessment Directive 2011/92/EU.

Mr Justice McAlinden considered that the real gravamen of the applicants’ complaint in this regard was that following from a recommendation in the final Planning Appeals Commission (PAC) report submitted to the DFI, the DFI engaged in an exercise to produce estimates of greenhouse gas emissions resulting from such induced trips which resulted in the production of new environmental information which was not available at the public enquiry held in respect of the scheme and which had not been subjected to consultation or scrutiny.

Having considered the evidence, the judge concluded that the environmental information contained in the revised estimates was new and sufficiently important to warrant being made the subject of further consultation and scrutiny prior to any decision being made and in failing to do so, the protections incorporated in the domestic iteration of the Environmental Impact Assessment (EIA) process were not invoked where they should have been.

The High Court also addressed inter alia the applicants’ argument that the decision to proceed with the A5 scheme interfered with rights pursuant to Article 8 of European Convention on Human Rights in circumstances where the PAC recommended that in light of the uncertainty experienced by those whose property could be affected by compulsory acquisition in the context of the scheme, any decision to proceed with the scheme should be time limited in that if construction did not commence prior to the end of the 2028-2029 financial year the authorisation should lapse, a recommendation which was rejected by the DFI as impracticable.

In this regard, the High Court remarked that the human rights concerns had not been addressed at all by the DFI when deciding to reject that recommendation and accordingly, the applicants’ argument in this regard was unanswerable and the court did not need to consider the question of whether the decision to reject that recommendation constituted an actual breach of the applicants’ Article 8 rights.

Conclusion

Accordingly, the High Court quashed the decision of 2 October 2024 and the orders made thereunder.

In the Matter of an Application by John Hamilton Hassard & Ors [2025] NIKB 42