Official Report: Minutes of Evidence

The Chairperson (Mrs Erskine): I welcome Mr Colin Hutchinson, director of A5 and active travel; Mr Seamus Keenan, deputy director of the A5 western transport corridor; and Mr David Millar, Roads Service. I seek agreement that the evidence be reported by Hansard.

The Chairperson (Mrs Erskine): There is a huge amount of documentation. I know that it is difficult, but I invite you to outline it briefly, in five minutes, and I will then come to members' questions. Thank you for your time today.

Mr Colin Hutchinson (Department for Infrastructure): Thank you, Chair and members, for the opportunity to be here. We are delighted to be here at this stage. It is fantastic. My introduction will be short, and then I will hand over to David to take you through the detail. We are here to get your positive consideration of the direction order and the stopping-up order. Seamus and I are here to answer any queries that you might have thereafter. On that note, I will hand over to David to take you through the detail.

Mr David Millar (Department for Infrastructure): Good morning, members. As part of the Minister's decision to proceed with the A5 scheme, he instructed officials to progress the necessary statutory orders. The two statutory orders that are to be made are the Trunk Road T3 [(Western Transport Corridor – Sion Mills (North) to Ballygawley (West)] Order (Northern Ireland) 2024, which is more commonly referred to as a "direction order", and the Private Accesses on the A5 Western Transport Corridor – Sion Mills (North) to Ballygawley (West) (Stopping-Up) Order (Northern Ireland) 2024. They are explained in the two SL1s that are in front of the Committee for consideration.

The other orders that are to be made are the three vesting orders. There is one to cover the section of the project from north of Sion Mills to south of Omagh; one to cover the section from south of Omagh to west of Ballygawley; and a third to cover additional lands for environmental and flood mitigation measures. The vesting orders are administrative orders, which means that they are not subject to Assembly procedures but are orders that the Department makes. The date on which they come into operation is the date on which we lodge them with Land Registry to register the Department's title. In this case, we aim for the vesting orders to become operative on 25 November.

Following your consideration and the making of the trunk road order, the stopping up of private accesses order and the vesting orders, the Department will place a statutory notice in the local papers that formally advises the public of the Minister's decision to proceed with making the orders and the date on which they will come into operation. The last date on which the notice appears in the papers will set the start of the six-week period during which anyone can lodge with the High Court a legal challenge to the validity of the decision to proceed on the grounds that it is not within the Department's powers or that any part of the environmental statement or impact assessment procedures as set out in Part V of the Roads (Northern Ireland) Order 1993 have not been complied with. It also starts the one-month period for any legal challenge to be made to the High Court to the validity of making the vesting orders on the grounds that they are not within the Department's powers or that the statutory procedures have not been followed.

We are aiming for the statutory notice to appear in the papers in the week commencing 21 October. That will mean that the last date that the notices will appear in the papers is Friday 25 October, and that will be in 'The Belfast Gazette'. That means that the six-week period for the legal challenge will end on Friday 6 December.

We will write to the landowners affected by the vesting orders and the decision to proceed to advise them that the vesting order relating to their land has been made. We will attach a copy of the Minister's decision to proceed, a copy of extracts of the vesting schedule and maps relating to their lands. At that time, we will also advise them that they should appoint an agent to assist and advise them in agreeing accommodation works and, in due course, assist them in submitting their compensation claim. We will also advise them that the Department will pay all reasonable costs for the appointed agent and reasonable legal costs in providing proof of their title so that we can pay them their compensation moneys.

We will also provide them with the Land and Property Services (LPS) compensation form for their agent to complete and submit in due course. We will also advise them that they can immediately submit for a 90% advance payment for the value of land vested from them, as assessed by LPS. However, experience shows that the agents generally advise their clients to wait until the scheme has been completed and all the accommodation work is done before submitting their full claim.

All landowners will receive a copy of the Department's 'DFI Roads guidelines for the acquisition of land/property for major road development in Northern Ireland'. That is a significant brochure that we developed with the assistance of DAERA and the Ulster Farmers' Union (UFU). It is intended to inform and advise farmers and landowners about the development process that the Department adopts when bringing forward proposals for major improvement schemes. It also sets out the landowner's rights and entitlements to compensation and the types of accommodation works that they may wish to consider.

The Minister's decision and all the relevant associated documents will be made available online and placed for inspection in the council offices, DFI offices and Monaghan County Council and Donegal County Council offices.

I will just summarise the main point. Most people are interested in the date. Following publication in the local papers of the statutory notice to proceed, the six-week period for any legal challenge will end on Friday 6 December.

The Chairperson (Mrs Erskine): Thank you very much. I will come to members' questions in a moment. Obviously, this is very pertinent to me, even though I am Chair of the Committee. The main date is Friday 6 December. After that, can anybody take a legal challenge, even during construction works?

Mr Millar: Members will recall that, on the A6 Randalstown to Castledawson road, a gentleman, Mr Murphy, took a legal challenge nine months after the six-week period, and we still had to go to court to defend that legal challenge. If the legal challenge comes, depending on what it is and on the timing, we still have to deal with it.

Mr Hutchinson: Maybe a wee bit of clarification there will help. At this point, there could be a legal challenge on the Minister's decision. Then, in the future, if something were to happen, if somebody felt that they should bring a legal challenge, they have the right to do that.

The Chairperson (Mrs Erskine): At that stage, what would happen to the vesting processes and the stopping-up orders?

Mr Hutchinson: Do you mean if a challenge were received at that point? We are live to the possibility of challenge, and we might be in that position. We will have to give careful consideration to the strength of the challenge at the time and before the Minister makes a decision on exactly how he moves forward. However, the vesting order would be made at that point and there would be nothing, from a legal perspective, to stop us continuing until such times as a court tells us that we have to stop.

The Chairperson (Mrs Erskine): I noticed that the stopping-up order had been modified. It has been changed since 2016. What modifications were made?

Mr Millar: They were only minor modifications to the entrances. A couple of them were widened at the request of the landowners. I think that those were the modifications. They were minor, slight modifications that were made after the notices were advertised. It followed consultation with the landowners involved. I do not have the information in front of me on which landowner it was, but we modified it for one of the two.

Mr Seamus Keenan (Department for Infrastructure): To add to that, the stopping-up order would have been for the whole scheme in 2016, but we are now dealing with a certain stretch of the scheme, so it is likely that the number of private accesses has reduced considerably.

The Chairperson (Mrs Erskine): How many landowners did the modifications relate to? Was it a small number?

Mr Millar: The stopping-up order relates to only two entrances. There were more entrances for the whole scheme, but the number has been reduced to those two properties and their entrances.

The Chairperson (Mrs Erskine): The owners were content.

Mr Millar: They were content.

The Chairperson (Mrs Erskine): That is the reason that it was not re-advertised.

You talked about timescales for submitting the notices: what about the timescales for fencing along that stretch of road? That aspect of the construction work is key for landowners, because they may not be able to access their land. Within that time frame, for how long will landowners see fencing and construction work taking place on their sites? That affects whether they can access their land.

Mr Hutchinson: Given that the stretch is 55 kilometres long, no contractor will be on all the land on day 1, so the key message for landowners is that they should continue to farm their land until such time as we have a detailed programme from the contractor. The contractor will discuss that programme with them and give them advance notice of when the work will happen.

Once the land becomes the Department's, our intention is that we will get on to a lot of the land to complete the archaeological investigations. Those investigations have been ongoing for some time, but there are certain lands to which, by agreement, we have not been permitted access. We will therefore complete those investigations and de-risk the construction by completing geotechnical investigations and environmental surveys. All of that is needed in order to inform the detailed design that the contractor will take forward.

Our intention is that, once we own the land or have got past the period for objections, we will enter the land to do that. It is planned that we will go on to the lands in the new year to do site clearance. We will put up fencing to accommodate that site clearance. That work is seasonal. If we do not get it done outside the nesting season for birds, it will become much more difficult and problematic to do it. That is the time frame for the next few months, as it stands.

The Chairperson (Mrs Erskine): Will that be done in a small area?

Mr Hutchinson: We will cover as much of the site as we can, but, no matter how much of the country's workforce we could get to do that work, we could not do it all in one go. The work will therefore be programmed over a period of months. The important message for landowners is that, once the contractor is completely on board, we will visit all the landowners, with the contractor, to give them advance notice of when we intend to come on-site and work with them to accommodate any specific needs that we may have. That process is not new; it is what we do for such schemes. A landowner may have a specific need and say, "I need access to that field for another three months. What can be done about that?". In most cases, we can accommodate that type of thing. Many landowners will continue to have full access to their land for many, many months to come.

Mr Stewart: Thank you very much for the information. You referred to the A6. I have no doubt that you have been involved in other vesting schemes and major capital projects. This is probably the most significant of them. At 55 kilometres long, it is a bit of a beast. What are your major concerns, if, indeed, there are any? What keeps you awake at night from previous experiences, or are you happy that everything is going in the direction that it should be?

Mr Hutchinson: Until now, it was getting the decision that was made last week [Laughter.]

The biggest challenge for us was to get to that point.

We are moving on to a completely different chapter now. The first challenge is to get terms agreed with the contractors to allow us to move swiftly to start the works next year. The biggest scheme that we have taken forward up until now is the Drumahoe to Dungiven dualling scheme, which is 25·5 kilometres long. That is big.

Mr Stewart: That is big.

Mr Hutchinson: This is two schemes: one is 30 kilometres long, while the other is around 23 kilometres long. We have done it before. At this point, I see no significant risks that I would not see with any other project. The one thing that hangs over the A5 is the history and the potential legal challenge.

Mr Stewart: Thanks, Colin. The Chair referred to farmers and land issues: how many farmers are affected, overall? What about engagement with farmers about valuation? You will perhaps point them to LPS. If there is a dispute over a valuation or about the impact of not just the loss of land but their ability to farm, do farmers take up that dispute with LPS directly? Can they appeal the decision?

Mr Hutchinson: There are a couple of points to make. There are just over 300 — 315 or thereabouts — landowners on the section that we are authorising now and around 415 for the overall scheme. As Davy mentioned, vesting packs will go out to them, and those packs will contain a lot of information. The key message from us is, "If you haven't already done so, get an agent on board". The Department and LPS will hold joint clinics in the coming months, and landowners will be made aware of those. Any questions that they have will be answered there. We also intend to meet all the agents collectively. We are paying the agents to do that job, so we want to make sure that they do it and get the right messages out. There will be toing and froing, because that is how this works. If a claim is put in, and there is not agreement —

Mr Stewart: Trading. [Laughter.]

Mr Hutchinson: — there is an opportunity for the landowner to take the case to the Lands Tribunal in the High Court, and it will make a decision on it. There are avenues for resolving disputes, but only a small percentage of cases end up there.

The Chairperson (Mrs Erskine): Would it be possible to get a copy of the vesting pack that goes out to landowners, just to see what it looks like? It might be useful for informing the Infrastructure Committee.

Mr Hutchinson: Absolutely.

The Chairperson (Mrs Erskine): Thank you.

Mr Dunne: Thanks, folks, for the presentation. I have a point or two to make about the scheme's budget. I raised the matter with the Minister the other day. The budget, specifically, was not mentioned in his statement, but I notice that there is more detail on it on the website. The figures are huge: £2·1 billion for the overall scheme, with the costs being £1·2 billion for the first part of the scheme. First, how confident are you that that will be enough money? Secondly, how confident are you that you will ultimately be able to afford to do it?

Mr Hutchinson: We have done a lot of work on that front. We have liaised with colleagues across the water and down South to try to understand where the market is. The reality is that, in Northern Ireland, we have not tendered a road scheme of this significance since 2017. That was the A6 Dungiven to Drumahoe road. Since then, we have had hyperinflation, COVID and the Ukraine war, plus all the other issues that arose from that, so there will always be an element of doubt in the figures. We have, however, spent many months — the past six to nine months — reviewing the cost estimate for the entire scheme and the scheme that we have at the moment. We are confident that those figures are robust enough to deliver the scheme, with the caveat that anybody would have. We use indices that are used across the UK. Those indices will give us a month-on-month anticipated increase for inflation. At the moment, I think, we are applying an average of somewhere just below 4% across the time for completion of the scheme.

If we were to have something similar to the Ukraine war or COVID again, that would be horrible, potentially causing further hyperinflation, which is something for which we do not budget. If we were to budget for hyperinflation, we would never build anything.

Mr Dunne: I appreciate that. I do not underestimate the scale of the project; it is enormous.

My final question is about time frames. The Minister talked about five years. What is your assessment of that, given where we are today?

Mr Hutchinson: The contractors that we have on board were appointed in, I think, 2009. They have gone through a few iterations in that time. They know the scheme. For most schemes, even if a contractor were brought on board early, it would be for only 12 months or 24 months. As I said, the contractors know the schemes. They know the landowners. They have been through their design a dozen times to refine it. I am confident that they will deliver on their programmes. The first section of the programme will go live next year, while the second section — the southern section — will go live in 2026. That is where the five years comes from: a four-year construction period for the first section, with the second section running a year behind.

I am confident, but we need to complete the archaeological investigations and de-risk the job before we start the construction. Such things could throw up other issues for us, but we do a lot of work on risk management, which is part and parcel of the job. We have looked to identify as many of the usual risks and as many unforeseen risks as we can in order to build them into the programme.

Mr K Buchanan: Thanks, gentlemen, for coming along. I have a couple of questions. I saved my questions from the previous session for this one. [Laughter.]

Mr Boylan: Give it your best shot, Keith.

Mr K Buchanan: Calm down.

If the land is vested from a farmer on a specific date and he or she can use that land, will that have any impact on the final claim?

Mr Hutchinson: No.

Mr K Buchanan: Definitely not?

Mr Hutchinson: No.

Mr K Buchanan: OK. You talked about 315 farmers. What is your definition of a "land agent"? Are there enough land agents to service 315 farmers adequately, effectively and properly?

Mr Hutchinson: A land agent is a chartered surveyor.

Mr K Buchanan: Is an estate agent a land agent?

Mr Hutchinson: Yes.

Mr K Buchanan: Any estate agent can therefore be classified as a land agent.

Mr Hutchinson: Yes. A land agent is a chartered surveyor.

Mr Millar: The landowner appoints the land agent, so the contract is between the landowner and the agent. In theory, it is up to the landowner to decide, but there are lots of agents out there who are well versed in doing such schemes, such as the A6 scheme. Landowners could appoint a solicitor to be their land agent if they wanted to. It is really up to the landowner.

Mr Hutchinson: The question of whether there are enough land agents is a good one. That is part and parcel of the reason that we want to engage with them all. We want to see who they are and what they are. It is about engaging not only with the land agents but with the landowners. If they have concerns about the agents, we will take those on board and address them.

Mr K Buchanan: I dealt with a few land agents over the A6 Castledawson part of the A32 Magherafelt bypass scheme. It seemed that there were only a few serving several farmers. This, however, is a massive scheme involving 315 farmers. Not all estate agents could technically do that job if they had never done it, although they could probably learn to do it. That, however, will be to the detriment of the farmer. My concern is whether that farmer will be well enough represented. He or she just wants to farm land.

I am not an expert, but the process that I saw failed the farmers. Back in 2014 or 2015, they talked to Joe Bloggs from DFI and agreed something. The farmers just wanted to farm. Five years later, Joe Bloggs was gone, and there was no record of the agreement. Joe Bloggs was the person who caused the negative impact. My advice to any farmer is to get absolutely everything in black and white. People do not realise what the impact is on a dwelling. We all go to the bathroom at night, or we walk across our living room or landing.

The Chairperson (Mrs Erskine): Keith.

Mr K Buchanan: Imagine the impact from that being stopped. Some 315 farmers are being massively impacted on.

My final question is this: are you content with that? Are you content that the farmers will be adequately dealt with? I saw severe negative impacts from the A32 scheme. I am concerned that farmers will not be represented properly and effectively by DFI, in conjunction with the land agent.

Mr Hutchinson: From our perspective, we will have open avenues for landowners to speak to us and raise concerns. That is the avenue open to them. The first port of call is for them to appoint a good agent and get the service that they need from that agent. If they are not getting that service from the agent, they need to speak to us, and, as a Department, we then need look at what we can do to influence the number of agents. There are plenty of estate agents who have carried out the role. Some have carried out valuations hundreds of times, while others have done so a handful of times, but they know how to value land. The main part of their role is to value the land and to evaluate the impact that the scheme has had on the landowner.

Mr Millar: Part of the process of agreeing accommodation works with a farmer is that the engineers meet the agent and the farmer on-site. They agree what the accommodation works will be, and those are then listed. The farmer signs that off. That is on record, so I am surprised that you say that those agreements were not followed through previously. There is a record of what the farmer and the agent agree concerning accommodation works.

Mr K Buchanan: This is only a comment.

The Chairperson (Mrs Erskine): Very briefly.

Mr K Buchanan: You can have an agreement on-site about concrete posts or wooden posts for a laneway — you know all that — but that then gets lost in translation.

Mr Millar: It will be on record, so it should not get lost.

The Chairperson (Mrs Erskine): The main thing to say is that that needs to be set out clearly in the vesting pack. I take it that that will be the case when it goes out to landowners.

Mr Hutchinson: Do you mean information on appointing the agent and so on?

The Chairperson (Mrs Erskine): Yes, the whole process.

Mr Hutchinson: The process of agreeing accommodation works and so on has been gone through a few times, but there will no doubt be discussions on that again. When the contractor comes on board, further discussions about temporary accommodation works and so on will be required. We are here to build the scheme and, at the same time, make sure that we have the most minimal impact on the landowners who are affected. There will always be examples of battles. I could take you to loads of farmers whom we have long since left, and they would give us a good review, even though they would not have done so when we were there at the time.

Mr Durkan: Thanks, guys, for coming in. Well done on the work that you and your team have done to get the Minister and the Executive into a position to make that decision last week. I have a couple of questions, but I will hook them on to what Keith asked. Even a city boy like me will chance his arm at some of this stuff.

My questions are about the role of agents. When talking about agents, you said, "They are working for us", yet the contract is between the landowner and the agent. Is it still the case that the agent does not get paid until the deal is done and everything is done and dusted? There are potentially negative experiences to be had. Keith spoke about landowners having such experiences, but I mean agents who have been agents for landowners for 15 or 20 years on some schemes but, owing to delays, have not seen a penny. Has any thought been given to how that could be improved in any way?

Mr Millar: Historically, that was a difficulty for agents, especially with big schemes that we were bringing to a stage at which we had made the orders but then parked them for a couple of years until funding became available for the scheme. Now, however, when agents get to the stage at which they agree the accommodation works with a landowner, they can submit a claim for costs. Once the scheme is built and they start their main work on the actual compensation claim, which happens towards the end of the scheme, they will receive another payment. They will potentially be able to get a stage payment fairly early on once they conclude the accommodation works agreement process and get it signed off.

Mr Durkan: It is important that we take the route of least resistance.

Mr Millar: It is not a great business model for agents if they have to wait so long for their money. We are conscious of that and have tried to put something in place, but the agents are generally content with —.

Mr Durkan: Inevitably, that could contribute to the focus that they might place on particular issues, and, at times, landowners could feel underserved in that regard.

That is about it. My other points have been covered. I share the concerns about budget and about the impact of a lack of budget on the timeline, but I hope that things go well.

I have just one other thing to say that is important.

The Chairperson (Mrs Erskine): Well —.

Mr Durkan: No, it is more a point than a question, Chair, but I will turn it into a question. Given that this will not be done overnight — it will take a long time, and there has been much understandable elation and celebration over the result — it is important that a focus remain on the dangers that exist on the current A5 route. It is not as though those dangers have gone and everyone will live happily ever after. We need to reminders about how dangerous a road it is to keep going out.

Mr Hutchinson: Absolutely. The Minister said in reply to a question on his statement on Monday that we continue to monitor safety on the A5 with the PSNI and continue to invest. This year, around £1 million has been spent on lining, catseyes, carriageway reflectors at the side of the road and resurfacing. That investment will continue as we build the scheme.

The Chairperson (Mrs Erskine): Absolutely. Whatever road we are travelling on, we all have a duty when we are behind the wheel of a vehicle.

I think, members, that we are all content for now. We appreciate your coming to the Committee and taking our questions — sorry, Keith: do you wish to come in?

Mr K Buchanan: I have a quick question. With respect to the vesting, what point in time does LPS base the land value on?

Mr Hutchinson: From the date of the vesting order becoming operative. That is four weeks and a day from —.

Mr Millar: From 13 November. It will be made, hopefully, on 25 November. Sorry, it will come into operation on 25 October.

Mr K Buchanan: Roughly around that date.

Mr Millar: From the date of operation.

Mr K Buchanan: The valuation of the land is based on then.

Mr Millar: Landowners will get interest paid from that date, no matter when they —.

Mr K Buchanan: At the point of vesting. OK. Interest at what rate?

Mr Millar: At the Bank of England rate.

The Chairperson (Mrs Erskine): Cathal, just a quick point, please.

Mr Boylan: It is just a quick point, Chair, because it is important. I appreciate all the questions that have been answered, but there has been a major campaign about the A5 by people who have lost loved ones and by others. It is an important project. In case anybody is listening, we do not want to paint a negative picture. Questions have been answered about moving forward. We need to get that message out to whomever needs to hear it.

To be fair, Colin, there have been a lot of discussions, even with farmers, for a number of years now. It is not as if the project has popped up over the past three years. There has already been a lot of discussion, but the key element after today is to get the message out and work with whomever we can to deliver the project, because there are people on the other side of all of this. We are, however, dealing with it from a legislative point of view today, which is important for the Committee to do.

The Chairperson (Mrs Erskine): Thank you for your time today. We really do appreciate it.