Alternative A5 Alliance’s Application
| Jurisdiction | Northern Ireland |
| Neutral Citation | [2013] NIQB 30 |
| Date | 12 March 2013 |
| Court | Queen's Bench Division (Northern Ireland) |
1
Neutral Citation No. [2013] NIQB 30 Ref: STE8771
Judgment: approved by the Court for handing down Delivered: 12/03/2013
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION
________
Alternative A5 Alliance’s Application for Judicial Review
_________
IN THE MATTER OF AN APPLICATION BY THE ALTERNATIVE A5
ALLIANCE AND NAMED INDIVIDUALS
AND IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE
67BA OF THE ROADS (NORTHERN IRELAND) ORDER 1993 (AS AMENDED)
________
STEPHENS J
Part one
Introduction
[1] This is an application under Article 67BA of the Roads (Northern Ireland)
Order 1993 (as amended) by the members of the Alternative A5 Alliance and named
individuals (“the applicants”) for an order quashing the decision of the Minister for
Regional Development (“the Minister”) and/or the Department of Regional
Development for Northern Ireland (“the Department”) dated 31 July 2012 that the 85
km off-line A5 Western Transport Corridor dual carriageway scheme (“the scheme”)
would proceed (though in phases) together with the consequential vesting and other
orders (“the decision”).
[2] The decision was made under Article 67 of the Roads (Northern Ireland)
Order 1993 (as amended). This statutory challenge is under Article 67BA. Article
67BA(1) sets out the circumstances in which and the time within which an
application can be made. It is in the following terms:
“67BA(1) If a person aggrieved by a decision of the
Department to proceed with the construction or
improvement for which an environmental statement
2
has been made desires to question the validity of the
decision on the ground that—
(a) it is not within the powers of this Order; or
(b) any requirement of this Part has not been
complied with in relation to the decision;
he may, within 6 weeks from the date on which the
decision is first published under Article 67A(8), make
an application for the purpose to the High Court.”
Article 67BA(2) then sets out the powers of the court. In so far as relevant to this
application it is in the following terms:
“(2) On any such application, the Court—
(a) …
(b) if satisfied that the decision is not within
the powers of this Order, or that the
interests of the applicant have been
substantially prejudiced by a failure to
comply with any requirement of this
Part, may quash the decision, or any
aspect of it, either generally or insofar as
it affects any property of the applicant.”
[3] It is accepted by the respondent that the members of the Alternative A5
Alliance are “persons aggrieved” within Article 67BA(1)
[4] As the name Alternative A5 Alliance implies, the members of the applicant
group contend that the decision to provide a dual carriageway standard to in effect
the whole length of the A5 is incorrect. Hoy and Dornan Limited, consulting
engineers, were engaged by the applicants in November 2010 to undertake a review
of published information in relation to the proposed A5 scheme; engage in
correspondence with the Department and seek clarification in relation to the scheme
options development; and advise the applicants and their legal representatives on
technical issues and representation during the statutory procedures. Martin Hoy
sets out the following conclusions which also explain the alternative scheme
supported by the applicants:
“4.1 I consider the Department's proposed scheme to
provide an off-line dual carriageway to be
disproportionate in terms of strategic traffic volume
that would benefit over its entire length.
3
4.2 The A5 corridor could equally benefit from the
provision of by-passes for centres of population, built
to dual carriageway standard, combined with several
2+1 overtaking opportunities located along the
existing A5 with a phased approach to the above
works.
4.3 The use of by-passes and 2+1 overtaking
opportunities could disperse the platooning of
vehicles sufficiently to provide a significant
improvement along the A5 corridor in terms of wider
economic benefits, journey time savings, reliability of
journey time and meet the Department’s aims and
objectives. This may be achieved at a significantly
reduced capital cost and impact on the environment.
4.4 This current proposal will result in spending
approximately £0.85 Billion of public funds on an off-
line dual carriageway carrying some 500 vpd from
end to end. This will have a significant and long
lasting impact on the farming community, local
economy, loss of arable land and environmental
impact. It is my opinion that the Department's
proposal is not solving a defined problem along the
current A5 route corridor, rather a scheme driven by a
contribution of £0.4 Billion from the Republic of
Ireland.
4.5 Subject to the availability of the funding from the
Republic of Ireland, this current course of action by
the Department may result in the spending of over
£30 Million progressing a single option to provide an
off-line dual carriageway. This is with no
consideration of benchmarking of alternatives, or
thought given to ‘what can be provided’ within funds
available should the Republic of Ireland withdraw in
part or whole. It is my opinion that this situation must
be reconsidered further prior to the making of any
Orders in relation to this scheme.” (AR/4/762)
[5] The grounds of challenge overlap and accordingly counsel in their submissions
approached the grounds relied upon by the applicants under a number of headings
as follows:-
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