By 
PART of a legal battle over the proposed £1.7bn A5 road upgrade is to be sent back to the High Court, senior judges ordered today.
Two Stormont departments are currently involved in an appeal against a ruling that halted the major dual carriageway scheme for not complying with climate change targets. But Lady Chief Justice Dame Siobhan Keegan confirmed that a newly-raised point must first be determined by the judge who quashed the decision to approve the project.
The issue, related to the potential impact on Northern Ireland achieving net zero goals, emerged at the start of the hearing in the Court of Appeal.
“Suffice to say we find ourselves in a difficult and unsatisfactory position,” Dame Siobhan said.
“We are going to remit part of this appeal to the first instance judge to hear arguments on the case now advanced by DFI (Department for Infrastructure) and DAERA (Department of Agriculture, Environment and Rural Affairs).”
Infrastructure Minister Liz Kimmons is seeking to overturn a finding that the planned A5 scheme is unlawful.
Her Stormont colleague Andrew Muir, the DAERA Minister, has obtained permission to intervene in support of the appeal.
Proceedings centre on the decision to approve the 58-mile development between Derry and Aughnacloy in October last year.
According to official figures, 57 people have been killed on the road since 2006.
The project, which forms part of a proposed key cross-border business route linking Dublin and the north west, has already been held up by previous legal actions.
A fresh challenge against the decision to authorise construction work was mounted by an umbrella group of local residents and landowners known as the Alternative A5 Alliance.
One ground of challenge involved claims that approval breached a goal in the Climate Change (Northern Ireland) Act 2022 to get to net-zero greenhouse gas emissions by 2050.
In June this year, the High Court quashed the Department for Infrastructure’s decision to give the scheme the go-ahead.
Mr Justice McAlinden held that the decision was irrational based on a lack of evidence it would not prevent Northern Ireland meeting the climate change targets.
But new affidavit evidence has now been lodged to back the two departments’ case that the judge got it wrong in his analysis of a draft Climate Action Plan and any impact from upgrading the A5.
Counsel for the Alternative A5 Alliance argued that it was an unfair criticism based on a mischaracterisation of the findings.
Marc Willers KC added: “This scheme itself has been described by DFI… as being the largest ever infrastructure project in Northern Ireland.
“We are dealing with something of enormous work which we suggest could blow the (carbon) budget.”
However, Dame Siobhan, sitting with Lord Justice Treacy and Mr Justice Humphreys, insisted that the point about departmental responsibilities in the Climate Action Plan point was not fully raised previously and should now be dealt with at the High Court next week.
“It would be wrong of us to embark upon what we think is effectively a first instance decision,” she said.
“This is a discreet point which the judge will hopefully deal with swiftly next Monday.”
Meanwhile, the appeal continued against two other findings reached by Mr Justice McAlinden.
He identified a failure to properly show consideration of human rights issues in not imposing a time limit for construction.Another legal flaw related to compliance with an Environmental Impact Assessment (EIA), according to the judge.
It was concluded that the scheme could not proceed without further consultation on methodology for estimating greenhouse gas emissions from induced traffic on the A5.
David Elvin KC, for DFI, claimed the judge erred in that analysis.
“The evidence is that the Department did deal with (emissions), and the assessment considered the cross-border difference in any induced traffic,” he argued.
“Out of an abundance of caution they produced figures which demonstrated little significance from the scheme, the A5 is not likely to generate much induced traffic.”
The appeal continues.
Speaking outside court, a solicitor representing the Alternative A5 Alliance accused the government departments of causing a “debacle” by filling evidence at the eleventh hour.
Ciaran O’Hare, of McIvor Farrell law firm, said: “This procedural issue has now placed the parties in an unusual position that is in no one’s interests.”
