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Habitats Directive: Application to the Supreme Court

Richard Honey

An application for permission to appeal to the Supreme Court from the Court of Appeal in Northern Ireland has been made in the case of a judicial review brought by Chris Murphy against the decision of the NI Minister for Infrastructure to proceed with the A6 Randalstown to Castledawson road scheme under the Roads (Northern Ireland) Order 1993. 

The judicial review is based on breach of Article 6 of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora, transposed by Regulation 43 of the Conservation (Natural Habitats etc) Regulations (Northern Ireland) 1995.  Mr Murphy conducted his case in the High Court and the Court of Appeal as a litigant-in-person. 

The road – a new two-lane dual carriageway – is to be constructed very close to the Lough Neagh and Lough Beg Special Protection Area.  Lough Neagh is the largest freshwater lake in the British Isles.  The SPA is designated for supporting internationally important numbers of particular species of wintering birds, including Whooper swan, and also for the internationally important numbers of birds in the assemblage of wintering waterfowl.  The SPA is one of the top ten sites in the UK for wintering waterfowl.  It is the single most important site in Ireland, and the third most important in the UK, for Whooper swan.

The issues raised in the application for permission to appeal include:

  1. whether the decision constitutes agreement to a project within the meaning of Article 6(3) of the Habitats Directive or a decision to undertake a project within the meaning of Regulation 43(1) of the Habitats Regulations;
  2. whether a post-consent review undertaken under Article 6(2) of the Directive required an appropriate assessment of the implications of the project for the designated site in view of the site’s conservation objectives, as would be required under Article 6(3);
  3. whether an Article 6(2) review, or an appropriate assessment under Article 6(3), is lawful when: (a) it was not undertaken against the site’s up-to-date conservation objectives; and/or (b) it took into account measures which (1) were not certain and (2) ought properly to be characterised as compensation rather than mitigation.

A copy of the NI Court of Appeal’s judgment is available here. ://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear/Documents....

Richard Honey is acting for Mr Murphy on a pro bono basis, instructed by Andrew Ryan of TLT in Belfast.  Richard was called to the Bar in Northern Ireland in 2013 and has acted for a number of clients including the Alternative A5 Alliance and Friends of the Earth Northern Ireland.