Murphy's (Chris) Application
| Jurisdiction | Northern Ireland |
| Judge | Keegan J |
| Judgment Date | 28 March 2017 |
| Neutral Citation | [2017] NIQB 35 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 28 March 2017 |
1
Neutral Citation: [2017] NIQB 35 Ref:
KEE10242
Judgment: approved by the Court for handing down Delivered:
28/3/17
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
_________
2016 No. 90365/01
IN THE MATTER OF AN APPLICATION BY MR CHRIS MURPHY
TO APPLY FOR JUDICIAL REVIEW
IN THE MATTER OF A DECISION BY THE DEPARTMENT OF
INFRASTRUCTURE ON 17 AUGUST 2016 TO PROCEED WITH THE
CASTLEDAWSON TO TOOME DUALLING SCHEME
________
KEEGAN J
Introduction
[1] This is an application for judicial review of a decision of the Department of
Infrastructure announced by the Minister Chris Hazzard MLA on 17 August 2016 to
proceed with the Castledawson to Toome dualling scheme. This roads project is part
of the wider A6 scheme. The announcement on 17 August 2016 also comprised a
decision to make vesting orders in relation to lands surrounding the road project but
that is not part of this challenge.
[2] Leave was granted to the applicant by Maguire J to proceed with one ground
of challenge only namely that the impugned decision is in breach of Article 6 of the
Habitats Directive. It is important to state that the applicant’s original case was much
wider and represented a substantial challenge to many other aspects of the road
scheme including the proposed route. The applicant appeared as a litigant in person
with his wife as a McKenzie Friend. Mr McLaughlin BL appeared for the
respondent. I am grateful to both representatives for the professional way in which
this case was conducted.
[3] I explain the principal abbreviations used throughout this judgment as
follows;
RSPB-Royal Society for the Protection of Birds
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NIEA-Northern Ireland Environment Agency
SPA-Special Protection Area
SAC-Special Area of Conservation
EIA-Environmental Impact Assessment
SEA-Strategic Environmental Assessment
AA-Appropriate Assessment
HRA-Habitats Regulation Assessment
SIAA-Statement to Inform an Appropriate Assessment
Factual background
[4] The applicant comes before the court as an interested party in this road
project. In his affidavit he sets out his background in conservation and ornithology.
The applicant states in his affidavit that he has co-founded many conservation
groups in the past. He has advocated for various areas in the United Kingdom that
were under environmental threat. He states that these places are now considered to
be important areas not only for wildlife but also for the well-being of people.
Between 1984 and 1988 the applicant was employed as a professional ornithologist
and at the time he was the RSPB’s only full-time executive officer in Northern
Ireland. He avers that since 1988 he has maintained a keen and active interest in
many branches of natural history and nature conservation largely in a voluntary
capacity. Since 1988 he has been employed in tourism, both general and wildlife.
This has involved him travelling throughout Great Britain and Ireland as well as
over five continents researching, designing and leading birdwatching holidays.
[5] The applicant has through his interest in birdwatching and wildlife in general
gained an intimate knowledge of the British Isles and important wildlife sites. The
affidavit evidence sets out the wide scope of the applicant’s interests in this field. In
particular, since the applicant came to Northern Ireland over 30 years ago, he has
been interested in wetlands, bogs and the habitat surrounding those places. This case
centred on the issue of the protection of the breed Cygnus cygnus known as the
Whooper swan.
[6] The applicant explained the characteristics of this migratory bird which lands
in the Lough Neagh area each year. In his papers the applicant produced a RSPB
information leaflet which includes the following information:
“The Whooper swan is a large white swan, bigger
than a Bewick’s swan. It has a long thin neck, which it
usually holds erect and black legs. Its black bill has a
large triangular patch of yellow on it. It is mainly a
winter visitor to the UK from Iceland, although a
couple of pairs nest in the north. The estuaries and
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wetlands it visits on migration and for winter roosts
need protection. Its winter population and small
breeding numbers make it an Amber List species.”
This information leaflet refers to the areas where the birds are seen in Scotland,
Northern Ireland, Northern England and parts of East Anglia. It refers to October–
March as the time when the birds come to our shores as part of their migration. The
material also refers to there being 9-14 wild pairs in the UK breeding and 15,000
birds in the UK wintering. In his submission the applicant referred to his fear for this
species particularly given what he said was a drop in numbers last winter which
may have been related to issues of flooding. The applicant referred to the fact that
this bird has been represented in natural history and folklore. He also referenced the
importance of the general area around Lough Neagh as a wildlife sanctuary and as
an area close to the home place of the poet Seamus Heaney.
[7] This case relates to what is called the ‘dualling scheme.’ This is the A6
scheme which it is an important part of the north western key transport corridor
connecting Belfast and Londonderry via Toome, Magherafelt and Dungiven. The
respondent has averred on affidavit that the corridor is of strategic and economic
importance within Northern Ireland, providing an essential road link between the
Belfast Metropolitan area and the northwest. The details of this scheme have been in
the public domain for some time and it is known to be a project aimed at delivering
improved road safety and consistent journey times for strategic and local road users
to facilitate a further expansion of local industry in the area. The A6 is identified as a
key transport corridor in the regional development strategy 2035 which has been
approved by the Executive.
[8] The new scheme consists of a dual carriageway from the western end of the
M2 motorway at Randalstown to the Castledawson roundabout. Delivery has now
been secured by way of capital funding from the Northern Ireland Executive as part
of what is called the “flagship projects” detailed in the December 2015 budget
statement. This commitment has facilitated the proposed start of construction of the
scheme in 2016/2017.
[9] This judicial review centres on one discrete part of the road scheme which is
an approximate five mile stretch of the road from Castledawson to Toome. The A6
dual carriageway scheme is a proposal for a new trunk road and as such it is
governed by certain legislative provisions to which I will return. The design and
route for the new A6 dual carriageway was selected during the period between 2003
and 2006 after the Department conducted consultation, community information
events and stakeholder events. It appears clear that a number of routes were muted
however the current route was decided upon after considerable period of
consultation.
[10] The scheme includes two main elements which involve the creation of a new
dual carriageway and associated junctions between the M22 at Randalstown and the
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