As traffic falls, North’s High Court overturns unnecessary habitat-destroying road for inadequate assessment of its effects, for the moment – Anton McCabe
The North’s High Court has quashed an order by Regional Development Minister, Danny Kennedy, to proceed with construction of two parts of the A5 dual-carriageway. This is the largest planning-related decision ever overturned by a court in the North. The grounds were that the Department of Regional Development had failed to carry out an appropriate assessment under the EU Habitats Directive of the impact on the Foyle and Finn rivers, as required under European law. 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 A5 was to be the North’s largest-ever road project. Originally it was to run 54 miles from Aughnacloy, on the Monaghan-Tyrone border, to Newbuildings, three miles south of Derry. At Aughnacloy, it was to link with the N2 from Dublin. The government had initially committed to pay half the cost, some £400m. Two years ago it withdrew that commitment, then last year agreed to pay £50m in two parts. Last year, Kennedy had announced the decision to go ahead with stretches from Ballygawley, Co Tyrone, to Omagh, and Strabane to Newbuildings.
The judgment was a victory for campaigners in the Alternative A5 Alliance (AA5A). This is a coalition of farmers and environmental campaigners, and raised £100,000 (€118,500) to fight the case.
In his judgment, Judge Stephens drew on evidence given by the Loughs Agency, a Cross-Border body, at the public inquiry into the project. The Agency expressed concerns about potential damage from construction work “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”. He noted that this evidence was not challenged at the Public Inquiry. Justice Stephens concluded: “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”.
There was a cross-border touch to the judgment: Mr Justice Stephens quoted from an opinion of UK Advocate-General Eleanor Sharpston, delivered at the European Court in the case of Peter Sweetman v An Bord Pleanála, in respect of the Galway City by-pass.
The judge dismissed 11 other grounds of appeal which the AA5A raised.
Kennedy has announced he is not appealing the judgment. However, in Kennedy’s statement to the Assembly he said: “The non-appeal route offers the best opportunity to progress the scheme in a reasonable timescale. However, the decision of the court means that there will be a delay while further assessment work is completed”.
Deputy First Minister Martin McGuinness said the Executive intends to press ahead with the project within 12 to 18 months. “However, there is still total commitment from the Executive and the Irish government to the scheme”, he said. “During the discussions with Éamon Gilmore, we (McGuinness and Peter Robinson) also took the opportunity to remind him that the First Minister and I, in previous conversations with Enda Kenny, had pressed the Irish government to ensure that the decision that they took to withdraw from their part of the scheme — with the exception of £50m — needed to be reviewed on an ongoing basis. The Taoiseach gave us a commitment that it would be reviewed in 2013”.
The government had initially committed to pay half the cost, some £400m. Two years ago it withdrew that commitment
There has been remarkably little discussion in the Oireachtas about the project. As a general aspiration, it was included in the National Development Plan 2007-2013: “The completion by 2013 of a high quality road network on the inter-urban routes linking the major population centres of Dublin, Belfast and the North West (especially the Letterkenny-Derry Gateway)” .
The politicians who are most vocal in support of the dual-carriageway are nationalist. The project was agreed as a side deal between northern nationalist representatives and the two governments in the talks leading up to the St Andrews Agreement. However, sources in the DUP are resentful at its being labelled a ‘nationalist road’ as they believe they are equally supportive.
Meanwhile, there are questions over the viability of the project. The plan to make the N2 a dual-carriageway from Clontibret (Co Monaghan) to connect with the A5 at Aughnacloy has been suspended. Traffic levels on the N2 between Monaghan and Aughnacloy fell by 15% in the five years to July last year.
There is nothing that predicts an increase in the foreseeable future.
Anton McCabe has been a freelance contributor to the Sunday World, Sunday Life, Newsletter and Spotlight.
