A5 ruling reverberates through Stormont and beyond

RTÉ News​

29-06-2025

The Judicial Review court in Belfast's Royal Courts of Justice was stiflingly warm for the judgement.
The irony was not lost on those who had crammed into it to hear whether Northern Ireland's single biggest infrastructure project complied with Stormont's new climate change legislation.
The courtroom windows do not open.
They are bullet and blast proof - a throwback to the days of the Troubles. There was no choice but to tough it out during the two-and-a-half hour proceedings.
At the heart of the case was the planned upgrade of the A5 - a road that has become synonymous with death and serious injury.
It runs from the Co Monaghan border at Aughnacloy to Co Derry and is an important link to the wider northwest and Donegal.
The plan is to build a new dual carriageway along the entire 85km route at the eye-watering cost of £2.1 billion (€2.4bn).
It is a flagship project of the Stormont Executive and has the support of the Government, which has promised €600 million.
It is a staged development, so the section which had been advanced and was being challenged in the courts was a 55km section linking Strabane and Ballygawley.
The bill for that section currently sits at £1.2bn.
It may be a key infrastructure project, but it has been hanging around for a very long time. It was first proposed in 2007.
Since then, more than 50 people have been killed along the road, and hundreds more injured, as the project became embroiled in a series of legal battles.
Three times now, landowners have successfully gone to court to thwart the project.
They are opposed to the impact on farms and homes and say the existing road could be improved rather than building a new one.
The land vested runs to more than 3,000 acres and affects more than 300 farms.
Stormont's Infrastructure Department has been its own worst enemy in failing to progress the scheme.
Northern Ireland's Planning Appeals Commission, which held a public inquiry into the A5 development, has pointed out the "unforced errors" the department made over the years.
They include failing to carry out proper environmental assessments, taking decisions it did not have the power to take and ignoring its own flood risk experts' advice.
All handed ammunition to those challenging the scheme in the courts.
So, there was a lot at stake in the judicial review court last Monday as Mr Justice McAlinden walked in to deliver his 100-page judgement, including to Sinn Féin Infrastructure Minister Liz Kimmins, who had turned up in person.
There had been a huge public campaign to deliver the project this time.
At the heart of it were the families of those who had lost loved ones along the route.
The GAA in Co Tyrone had mounted an effective media strategy to put them front and centre in the debate.
The relatives had attended the hearings several times, requiring the case to be moved to a larger courtroom to accommodate them.
But none of them turned up on Monday, an indication perhaps of uneasiness about the outcome.
As it turns out, it was well placed.
Mr Justice McAlinden had a lengthy written judgement. At the outset, he made a copy available to the legal teams and provided one copy to the media.
As he began to read it people in the court approached journalists for an indication of the outcome.
For the backers of the A5, it was bad news. It had gone against them. The judge had ruled in favour of the landowners.
Mr Justice McAlinden knew what this meant, saying: "It is likely that delays in the progress of this scheme will coincide with the occurrence of further loss of life and serious injury on the existing road.
"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."
The law which could not be subverted was Stormont's Climate Change Act of 2022 and in particular, section 52.
It puts an onus on Stormont departments to act in such a way that ensures Northern Ireland meets its emissions targets and carbon budgets on the way to the legislation's goal of net zero by 2050.
Mr Justice McAlinden said he had seen insufficient evidence that the building and operation of the new A5 fitted with this legal requirement, especially as Northern Ireland already looked to be on course to breach its interim targets.
This rendered the Infrastructure Department's decision to embark on the A5 upgrade "non-compliant" with its obligations under the Climate Act.
"Rather than basing its decision on evidence … it 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 (department) could proceed with the project and at the same time the Climate Act targets would be achieved and the budgetary allowances would not be exceeded," the judgement said.
It was a crushing section of the judgement.
Earlier, Mr Justice McAlinden had referred to this approach by the department as the "alright on the night" approach, a reference to a 1970s TV blooper show.
It was all quite embarrassing.
Minister Kimmins left the court, pausing only to issue a short statement to waiting camera crews and declining to take any questions.
She remained committed to building the A5, she said, something she doubled down on in the assembly later that day and again later in the week.
But the question remains, how?
Last year, it was revealed that £110m had already been spent on the A5. That bill will continue to rise.
With the orders to begin the work quashed by the court, land which has been vested will have to be returned to landowners and remedial work undertaken to restore it to its previous condition.
There are other costs too.
To the reputation of Stormont and its ability to progress big infrastructure projects.
To the northwest, which has suffered from historic underinvestment and was relying on this road to give the regional economy a major boost.
To politicians, especially nationalist ones, who promised the predominately nationalist electorate west of Lough Neagh a rebalancing of public investment there.
The judgement also lays down an important legal precedent - any big infrastructure project must now show it can jump the hurdle of compliance with the Climate Act.
People should not think this is just a northern issue. The decision of Belfast's High Court was raised in the Dáil this week.
Five councils, including Monaghan and Donegal County Council, sit on an A5/N2 cross-border committee, which was briefed by Minister Kimmins in the wake of the ruling.
Letterkenny Chamber of Commerce said the A5 was "central" to its regional development strategy.
And of course, there is €600m the Government has promised and which it said is still available to the project.
The judgement of the High Court was complex. It did contain a few crumbs of comfort for those in favour of the A5.
The judge said the "shortcomings and shortcuts" he had highlighted were capable of being "remedied".
Ms Kimmins told a Stormont Committee on Wednesday that the judgement is not "insurmountable".
One avenue proposed by the SDLP is an emergency amendment to the Climate Change Act so that it cannot delay measures that will protect human life.
Another option is to appeal the High Court judgement to Northern Ireland's Court of Appeal, something Ms Kimmins said remained a possibility.
The families of the bereaved said they had been "heartbroken" by the judgement, which some found "unbearable".
Mr Justice McAlinden also expressed his hope that there could be a resolution of the impasse so that "sooner or later" the list of names of those who had perished on the road would not be added to.
It is an aspiration with which many may agree.
But the experience of the A5 saga to date is that day may come later rather than sooner.