Plans for Northern Ireland’s biggest road scheme could be quashed — because of an endangered fish.
High Court judge warned on Tuesday that he is considering halting plans to press ahead with the £330m dualling of the controversial A5 road, which runs from Londonderry in the north west to Aughnacloy in south Tyrone.
Mr Justice Stephens rejected most of the grounds of challenge put forward by campaigners seeking to halt the road scheme — which would have been Northern Ireland’s biggest roads project until it was downgraded last year. But he warned he was “minded” to quash the 50-mile project because the potential impact on two of Northern Ireland’s finest salmon rivers had been overlooked.
The judge found there had been a failure to carry out an appropriate assessment of the Rivers Foyle and Finn Special Areas of Conservation under the Habitats Directive. These rivers received the special European designation because of their importance to migrating endangered Irish salmon.
The judge said Loughs Agency evidence to the public inquiry raised doubts over the effectiveness of remedial measures proposed by the department.
Mr Justice Stephens has now granted the Department for Regional Development eight days to argue that the failure to carry out an appropriate assessment of the impact of the road on the Finn and Foyle rivers should not result in the decision being quashed.
Work on the dualling scheme was put on hold last year after 18 farmers, businessmen and landowners banded together to launch the legal challenge in a bid to block the two stretches between Derry and Aughnacloy.
The project forms part of a key cross-border route linking the north west with Dublin and at one point carried a £1bn price tag, part of which financial burden was to be carried by the Irish government.
But after a recession and a change in government, the Republic pulled out of the plan to provide £400m for the A5 and A8 upgrades. Stormont Transport Minister Danny Kennedy decided to build two sections — between Derry and Strabane and between Omagh and Ballygawley.
The Executive earmarked £280m for this revised scheme.
Lawyers for campaigners argued that the A5 upgrade has now become a different project and no proper environmental impact assessment (EIA) was carried out.
In a 67-page judgment Mr Justice Stephens dismissed this claim yesterday, along with others alleging apparent bias of the inspectors at the public inquiry and a breach of the group's property rights. But he upheld grounds that DRD failed to carry out an appropriate assessment of the Rivers Foyle and Finn Special Areas of Conservation.
He said: “An appropriate assessment should have been but was not carried out under the Habitats Directive. On that ground the decision should be quashed.”
However, he said he would allow the department the opportunity to make further submissions on whether the breach should lead to such an outcome.
Lawyers on both sides will return to court next week for a final resolution to the case.
Costs of bringing the challenge will also be settled at that stage.
John Dunbar, A5 Alternative Alliance chairman, said the group was reluctant to count its chickens but was more hopeful than it had been.
“We’re moving in the right direction and we’re relieved that it’s going that way,” he said.
“We hope this will be the end of the scheme in terms of a dual carriageway. It will give Roads Service the opportunity to get on with doing what it should be — improving dangerous road junctions. A lot could be done with the road and needs to be done with the road. I think this was a white elephant from the word go. The traffic levels never justified a road of such high specification.”
Minister Danny Kennedy said: “My department will now prepare the necessary submissions in relation to this point.
“It would not be appropriate for me to comment on the likely outcome of this legal challenge in advance of the judge's final decision.”
MLA Jimmy Spratt, who chairs the regional development committee, said it was pleasing that the other four grounds of appeal were all rejected.
He said: “Whilst we must always be mindful of legitimate concerns, particularly from landowners most affected, there are significant economic benefits, most particularly for the construction sector but also the wider economy. The 1,200 jobs resulting from the project are not the only driver, given the £10m cost associated with each month of delay.”
Why the troubled realm of the king of fish is at the centre of A5 debate
The controversial A5 dualling scheme has raised a host of fears — farmers worry it will cut a swathe through prime agricultural land; businesses are fearful that they will be cut off from rich sources of passing trade; local people point out they could face a lengthy round trip just to get on to the road.
But in the end it is a humble fish that is threatening the future of the project.
Yesterday, Mr Justice Stephens upheld just one of the grounds on which the legal challenge to press ahead with the road upgrade was taken — the failure to carry out an appropriate assessment of Rivers Foyle and Finn Special Areas of Conservation (SAC) under the Habitats Directive.
Both rivers are key habitats for spawning salmon — a fish that has plummeted almost to extinction levels in Ireland in recent years.
Last year it emerged that three out of every 100 wild salmon migrating out to sea are returning to their native Northern Irish rivers to spawn as sea survival rates plummet. Fifteen years ago, the figure was more like 30 out of 100.
Leisure Minister Caral Ni Chuilin banned the commercial netting of salmon and restricted angling to catch and release but was warned by culture, arts and leisure committee member Michael McGimpsey that the situation could be past the point of no return.
Yesterday, Mr Justice Stephens pointed out that the EU Habitats Directive requires any project likely to have significant effects on the management of an SAC must be the subject of an appropriate assessment. He said the department’s consultants had carried out a screening assessment and concluded that there were unlikely to be significant effects if remedial measures were put in place — as a result the department decided not to hold an “appropriate assessment”.
But a Loughs Agency expert told the judicial review there were doubts over the effectiveness of remedial measures proposed by the department.
Concerns were raised about 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, and the risk of polluted ground water entering the rivers from an old municipal landfill site near Strabane.
While Mr Justice Stephens raised doubts about the SACs, he did not uphold the other grounds given by the A5 Alternative Alliance.
Yesterday, road enthusiast Wesley Johnson, of Northern Ireland Roads Site, said part of the road upgrade could proceed as the upheld grounds only dealt with the northern section.
“The judge has rejected all but one challenge against the scheme. He has ruled that the public inquiry was not unfair, that the environmental impact assessment is valid and that the landowners' rights have not been breached,” he said.
“There are now no outstanding challenges to the Omagh-Ballygawley section,” he added.