Alternative A5 Alliance’s Application

JurisdictionNorthern Ireland
JudgeStephens J,Horner J
Judgment Date03 December 2012
Neutral Citation[2012] NIQB 97
CourtQueen's Bench Division (Northern Ireland)
Date03 December 2012
Neutral Citation No: [2012] NIQB 97
Judgment: approved by the Court for handing down Delivered:
(subject to editorial corrections)*
The Alternative A5 Alliance’s Application [2012] NIQB 97
[1] The Alternative A5 Alliance has brought what is in effect a statutory judicial
review of the proposed 85 kilometre A5 western transport corridor being built
because, inter alia, they claim the Department has breached their EU rights in
general and the EIA Directive in particular. The Alliance claims that the
requirements of Article 9 of the Aarhus Convention which had been incorporated
originally in Article 10A now Article 11 of the EIA Directive 2011/92/EU are directly
[2] The Alliance seeks a Protective Costs Order (“PCO”) of £5,000. The
Department of Regional Development (“DRD”) object not to the order but to the
amount and suggest £50,000. They also seek a cap on the costs which would be
recoverable by them should the Alliance succeed in the sum of £30,000. The Alliance
resists this and point out that the costs which they can recover are limited in any
event because their legal team is working at discounted commercial rates.
[3] First of all, I want to commend the industry of counsel. I have had the benefit
of two very detailed skeleton arguments and of being referred to all the relevant case
law, both in UK and Europe and also to the relevant legislation. I want to make it
clear that although I do not deal specifically with every authority to which I have
been referred, I have taken them all into account. In particular I found considerable
assistance from two sources. The first was the decision of the Lord Chief Justice in
the decision of re Ciara Thompson 2010 NIQB 38 and the second the opinion of the
Advocate General Kokott in the referral by the Supreme Court in Edwards v
Environment Agency 2011 (1WLR 79). It was common case that the date for the
decision of the ECJ was unknown. It might be a matter of weeks or a matter of
months. The opinion of the Advocate General given on 18 October 2012 is only
advisory and does not bind the court. However, I do consider her reasoning to be
persuasive. She said at paragraph 49:

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