The Court of Appeal has overturned a judgement that blocked upgrade works on Northern Ireland's A5 between Derry and Aughnacloy in County Tyrone.

Northern Ireland's Government has been trying to upgrade the 58-mile stretch of road for a while – the project was first approved by the Northern Ireland Executive on 17 July 2007 – but the £1.7bn project was most recently halted by the High Court in Belfast last year. It stated that the scheme could not proceed in its current form following a legal appeal from climate activist group Alternative A5 Alliance.

However, the Court of Appeal found earlier this week that the High Court was ‘wrong to say there was an "evidential lacuna"' which rendered the approval of the scheme ‘irrational'.

It added that the ‘fundamental error' was the court's failure to consider how the decision ‘fitted within climate targets across Northern Ireland as a whole'.

The appeal was made on the following grounds:

  • Whether the High Court was correct to quash the decision on the basis of noncompliance with the Environmental Impact Assessment (EIA) Directive
  • Whether the High Court was wrong to quash the decision on human rights grounds
  • Whether the High Court was wrong to quash the decision for non-compliance with climate change regulations and whether the High Court was wrong in how it dealt with evidence relating to climate change.

With regard to the EIA, the Court of Appeal found that the High Court had ‘erred in its analysis of EIA compliance', stating that the DfI's environmental statement (ES) was ‘not itself deficient' and that ‘the traffic model and future demand modelling was prepared for it in line with technical guidelines and was endorsed by the PAC [Planning Appeals Commission] as adequate'. It also added that the ‘adverse effects of GHG [greenhouse gas] emissions' had been assessed and considered before the decision was taken.

The argument was made by the Alternative A5 Alliance to the High Court that land acquisition, prolonged uncertainty and the rejection of a PAC recommendation (recommendation 3) imposing a time limit on the authorisation constituted an unlawful interference with their human rights to private and family life. However, the Court of Appeal found that ‘due consideration was given' in response to the ‘the respondents' human rights and the evidence filed by them' and added that the High Court ‘had failed to recognise' would likely have been increased by quashing the vesting orders, as they would then were likely to be reconsidered in the future ‘when circumstances may have changed'.

The central issue regarding climate change was that Northern Ireland departments are required to ‘exercise their functions, so far as possible, in a manner consistent with statutory emissions targets and carbon budgets'. The PAC had stated that the 2050 GHG reduction target for the project was ‘extremely stretching' and added that ‘In the context of the current Northern Ireland emissions reduction targets, the scheme would have a large adverse effect on climate.'

However, the Court of Appeal found that it ‘was satisfied that DfI has, in making the decision to proceed with the A5WTC, performed its function in a manner consistent with the obligations set out in the 2022 Act', thanks in part to a Department Statement which recognised that ‘whilst the A5 WTC will result in an increase in emissions, it is a priority investment for the Northern Ireland Executive, and therefore the emissions generated from the construction and operation of the scheme will need to be factored into the Executive's plans to meet the emissions reduction target specified in the 2022 Act'.

Ministerial response

Following the Court of Appeal's judgement, Northern Ireland's Infrastructure Minister, Liz Kimmins, said: ‘I know this outcome will come as a huge relief to many people particularly the families who tragically lost loved ones on the existing A5 and who have campaigned tirelessly over many years for a safer road.

‘While I will take time to consider the detail of the judgment, it provided important legal clarity and vindicates the Department's position throughout, that it complied with the requirements of the Climate Change Act. This is a very welcome outcome, providing the certainty needed not only for the A5 Western Transport Corridor (A5WTC) but for the delivery of major infrastructure projects across the North. I will continue to work with DAERA and Executive colleagues to support infrastructure delivery while maintaining our climate ambitions.

‘My officials will be working at pace to ensure construction on this important strategic route can begin as soon as possible.  This will involve completing the remaining checks and approvals as well as getting agreement on costs with the current contractors.

‘I recognise that this judgment has significant implications for landowners affected by the scheme. Many have experienced years of uncertainty as a result of the prolonged legal process. My officials will engage directly with landowners to explain the implications of the judgment, provide updates on the anticipated next steps and ensure that they continue to receive clear and timely information as the project progresses.'