The Court of Appeal has upheld the Department for Infrastructure ’s (DfI’s) decision to proceed with the authorised sections of the A5 and clarified what section 52 of the Climate Change Act (Northern Ireland) 2022 requires of departments.

In Hassard and Others v Department for Infrastructure [2026] NICA 42, the Court of Appeal has allowed DfI’s appeal on every ground, clearing the way for the first phase of the A5 dual carriageway to proceed.

While the appeal also concerned environmental impact assessment and human rights grounds, this article focuses on the Court of Appeal’s interpretation of the Climate Change Act (Northern Ireland) 2022.

 

Section 52: Helpful Clarifications

 Section 52 requires every Northern Ireland department to exercise its functions, so far as possible, in a manner consistent with achieving the Act’s emissions targets, including net zero by 2050 and at least a 48% reduction by 2030, and its carbon budgets.

A Climate Action Plan (CAP) sets out the policies and proposals for meeting the relevant carbon budget; none had been adopted when DfI made its decision.

The judgment helpfully clarified several important points:

• The Climate Change Act is not a blanket prohibition on authorising carbon-generating infrastructure.
• The objectives of the Climate Change Act can be achieved through more than one policy pathway.
• The department has discretion to select the means of furthering the Climate Change Act objectives.
• A Climate Action Plan need not be in place before a project may proceed, and a project need not be expressly identified within such a plan.
• The Climate Change Act does not require the greenhouse gas emissions associated with a particular project to be mapped onto a precise, quantified policy pathway to net zero before the project can be authorised.

 

Discretion for Departments

Adopting the Irish Supreme Court’s reasoning in Coolglass Windfarm v An Coimisiún Pleanála [2026] IESC 5, the Court held that a duty to act “in a manner consistent with” the statutory objective does not prescribe any particular method of achieving it. It is for departments to select the means of furthering the objective, and the courts will not interfere provided the decision falls within the range of potential decisions (Hassard at [125]–[126]). The duty is stronger than an obligation to “have regard to” the targets but less exacting than an obligation to “comply with” them.

 

Beyond a Climate Sense Check

That is not a free pass, however. The Court distinguished the Irish legislation. Section 15(1) of the Irish Climate Action and Low Carbon Development Act 2015 applies to all public bodies, but it requires consistency only with plans, strategies and objectives expressed at a high level of generality, and it gives way where compliance is impracticable. Section 52, by contrast, is tied to specific statutory emissions targets for 2030, 2040 and 2050 and to set carbon budgets. It therefore goes beyond a mere “climate sense check” and imposes a more specific and exacting duty than its Irish equivalent (Hassard at [124]–[127]). By implication, the range of lawful options open to Northern Ireland departments may be narrower, a point the Irish Supreme Court itself recognised where the relevant plan contains more granular detail.

The distinction between “not possible” and “impracticable” matters. The Court held that the section 52 obligation “cannot be avoided for reasons of practicality but only when it is not possible to comply” (Hassard at [127]). That leaves an open question: what happens where a project cannot be shown to be consistent with the targets but is nonetheless needed for overriding reasons of public interest, such as a civil emergency or health and safety. The judgment does not address this. It is unclear whether “so far as is possible” would accommodate such a project, or whether a department would have to look for compensating reductions elsewhere, for example through the Climate Action Plan or the carbon budget mechanisms. This may need to be tested in future litigation or clarified by the Assembly.

 

Adequate Inquiry Required

What section 52 requires is a rational conclusion, reached after adequate inquiry, that the decision is, so far as possible, consistent with the achievement of the statutory emissions targets.

In practical terms, the department must have:

• sufficient information about the project’s greenhouse gas emissions;
• an understanding of the available future policy options for meeting the statutory targets; and
• an assessment of whether the project’s emissions would preclude achievement of the Northern Ireland-wide statutory targets.

That inquiry does not extend to plotting a project’s emissions on a precise, quantified pathway. The Court accepted that the High Court’s project-level approach was “wrong and unworkable” and that requiring individual projects to fit specifically within climate action plans “would stymie all major development in Northern Ireland” (Hassard at [135] and [146]).

The Court made clear that its role is supervisory: it will not substitute its view for that of an informed decision-maker or conduct a merits review of highly technical expert evidence.

 

Joined-up approach

While the Court of Appeal moved away from the High Court’s requirement for co-ordination, synchronisation and co-operation at project level, it confirmed that section 52 requires a joined-up, Northern Ireland-wide approach. Here, the scheme’s emissions were shared with DAERA and the Executive was fully informed of them. The Court held that this was sufficient. Although the judgment noted that section 52 decisions can “cross over” with other departments, the Court was not asked to decide whether section 20 of the Northern Ireland Act 1998 required the Executive to “discuss and agree upon” the matter because it cut across the responsibilities of two or more Ministers, leaving that issue for a future case.

 

Practical lessons

The decisive factor was a cogent evidence base. DfI succeeded on the strength of uncontradicted, highly technical evidence, and the Court stressed that the duty of inquiry is likely to require expert scientific analysis. Assembling such evidence may be challenging, particularly for policies, strategies and funding decisions that rarely benefit from the environmental statement, public inquiry and modelling that underpinned the A5. But section 52 yields only where consistency is not possible: difficulty alone will not displace the duty.

Section 52 does not stop development, but it demands credible evidence, early interdepartmental engagement and a clear explanation of how each decision is consistent with the road to net zero.

 

For legal guidance and advice regarding what the judgment could mean for your project, please contact Maria O’Loan or a member of our Planning and Environment Team.

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.