Court of Appeal hears appeal over climate change in Northern Ireland

IN THE MATTER OF AN APPLICATION BY JOHN HAMILTON HASSARD & OTHERS [2025] NIKB 42

The hearing begins in the NI Court of Appeal today (9 December) into the appeal by the Department for Infrastructure against the judgment of McAlinden J last June quashing the orders for the first 55 km of the A5 dialling scheme, from South of Strabane to Ballygawley, comprising part of Northern Ireland’s largest infrastructure project intended to improve the very poor safety record of the road, and improve cross border journeys. The orders were considered to breach s. 52 of the Climate Change (Northern Ireland) 2022 lacking the necessary cogent evidence in the absence of an approve climate action plan. S. 52(1) provides:

“52.—(1) The duties mentioned in sections 1, 3 to 5 and 24 on the Northern Ireland departments (namely, to ensure that the net Northern Ireland emissions account is below a certain amount and that the net Northern Ireland emissions account for carbon dioxide for 2050 is below a certain amount) are duties on each of them—

(a) to exercise its own functions, so far as is possible to do so, in a manner that is consistent with the achievement of that objective…”

2 other grounds also succeeded relating to the failure to undertake consultation on additional assessment of cross-border induced traffic and a failure to give reasons for not imposing a short timescale on implementation given the effect on uncertainty in implementation on the article 8 rights of local residents and landowners. The Judge concluded:

“[300] For the reasons given above, the decision and orders made thereunder must be quashed due to the breach of section 52 of the 2022 Act, the failure to demonstrate any consideration of the human rights issues raised by the PAC when rejecting the recommendation that permission should be time-limited and the failure to comply with the requirements of the domestic iteration of the EIA Directive in respect of placing the new environmental information in the form of the updated GHG emissions estimates out for public consultation and scrutiny. I am acutely aware that this decision will bring significant, fresh anguish to the doors of those who have been injured and maimed and those who have lost loved ones as a result of road traffic accidents on the existing A5 road. One of the primary justifications for the construction of this new road is that it will be much safer than the existing road and that, over time, many lives will be saved and many serious injuries prevented and many families will be spared the utter heartbreak of the sudden and shocking loss of a loved one. It is likely that delays in the progression of this scheme will coincide with the occurrence of further loss of life and serious injury on the existing road. These matters combined with the other benefits identified by the PAC in its 2023 report were considered to constitute overwhelmingly compelling arguments for the progression of this scheme. 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 shortcomings and shortcuts in the decision making highlighted in this judgment are capable of being remedied. The relevant Ministers, departments and officials should redouble their efforts to deal with these shortcomings and that may involve the finalisation of a CAP which is long overdue. But irrespective of the difficulties in overcoming these shortcomings, concerted efforts must be made by all 100concerned so that sooner, rather than later, a new and safer A5 dual carriageway may come into operation and the long list of names of those who have perished on that road will not be added to.”

DAERA which is responsible for the climate action plan and carbon budgets has intervened and the appeal is opposed by the Alternative A5 Alliance and (as second intervener) the Friends of the Earth.

David Elvin KC acts for the Appellant, the Department for Infrastructure