High Court reorders CJEU reference questions to prioritize general Aarhus interpretation over specific SEA application disputes.

[2026] IEHC 66

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0001464]

BETWEEN

FRANK MCDONALD, DAN BOYLE, PÁDRAIG MCEVOY, DARRAGH MORIARTY AND DAVID

HEALY

APPLICANTS

AND

MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE

RESPONDENT

(No. 2)

Date of impugned decision: 8 July 2025

Date proceedings commenced: 3 October 2025

Date of principal judgment: 17 December 2025

Date draft judgment circulated: 4 February 2026

JUDGMENT of Humphreys J. delivered on Tuesday the 10th day of February 2026

1. The purpose of consultation is to produce a better decision, whether we are talking about

consulting before deciding on a permission, adopting a measure of general application, or deciding

an issue in proceedings. In the latter instance, the consultation normally takes the form of

submissions or, more informally, correspondence in the case of more modest or procedural

questions. But we need to be clear that a “better” decision, if that turns out to be the chosen option,

inevitably means a decision that is at least in some degree different from that originally

contemplated. That’s why the details of a project can change in the course of the public participation

process (see Clifford v. An Bord Pleanála (No. 2) [2021] IEHC 642 (Unreported, High Court, 15

October 2021) at para. 12 onwards, Coyne v. An Bord Pleanála [2023] IEHC 412 (Unreported, High

Court, Holland J., 21 July 2023), para. 333 onwards and Eglington Residents Association v. An Bord

Pleanála [2025] IEHC 209 (Unreported, High Court, Farrell J., 15 April 2025) at para. 63). And a

similar process here explains why I have been persuaded by submissions to amend the wording of

the questions to be referred to the CJEU. As the judgment for reference will be issued separately,

the purpose of this short ruling is to explain how this came about and the resulting disposition of the

issues concerned.

December 2025 – the original proposed questions

2. When the case began, all concerned – myself included – thought that this matter could

revolve around the application of settled law rather than any question of interpretation. The more

one got into the matter however, the more apparent it was that there were in fact definite questions

of interpretation to be considered.

3. The first two questions (to summarise crudely – does strategic environmental assessment

(SEA) apply to design standards as opposed to external features/ land use, and if not in general, is

SEA required if guidelines modify other plans that were subjected to SEA) pretty much wrote

themselves. There were however two additional and disputed questions (about the non-SPPR text

and the need for an Aarhus-compliant interpretation).

4. In the No. 1 judgment (McDonald v. Minister for Housing (No. 1) [2025] IEHC 728

(Unreported, High Court, 17 December 2025)) I proposed the four questions for reference to the

CJEU and invited submissions. This was expressly stated to be subject to further consideration in

formulating the formal judgment for reference.

5. “Subject to submissions” is not an empty formula. When a court invites or entertains

comment, parties should have some confidence that responses will be given consideration.

6. The draft questions were:

(i) Do binding legal requirements (such as the specific planning policy requirements

contained in the apartments guidelines at issue in the main proceedings) relating to

the design of apartments come within the notion of a framework for future

development consent referred to in Article 3(2)(a) of Directive 2001/42 if they affect

(subject to other applicable legal requirements) the number of housing units within

a given project and their internal features and (to the extent that it is consequential

on internal features) their external appearance but not the number, location, size,

operating conditions or funding of apartment projects themselves (save to the extent

if any to which such matters flow from the design features)?

(ii) If the answer to the first question is No, do such binding legal requirements come

within the notion of a framework for future development consent referred to in Article

3(2)(a) of Directive 2001/42 if they derogate from other plans that were required

to, or were in fact, subject to assessment under that Directive?

(iii) Does the notion of a framework for future development consent in Article 3(2)(a) of

Directive 2001/42 exclude a plan where domestic law provides for a binding

obligation on competent authorities to consider such a plan in deciding on the grant

of development consent but not a binding obligation to comply with it?

(iv) Insofar as concerns the issues raised in the foregoing questions, should Article 3 of

the Directive 2001/42 be interpreted and/or applied by Member States and/or their

competent authorities so as to comply with Articles 7 and/or 8 of the UNECE

Convention on Access to Information, Public Participation in Decision-making and

Access to Justice in Environmental Matters done at Aarhus on 25 June 1998, to the

fullest extent possible?

January 2026 – the parties’ submissions

7. The State, which was never too keen on the latter two questions, resumed the attack in

submissions on foot of the No. 1 judgment. What they had to say about the 3rd and 4th questions

was:

“QUESTION 3: Does the notion of a framework for future development consent in Article

3(2)(a) of Directive 2001/42 exclude a plan where domestic law provides for a binding

obligation on competent authorities to consider such a plan in deciding on the grant of

development consent but not a binding obligation to comply with it?

12. The Minister’s proposed answer to Question 3 is yes. Provisions of domestic law to

which the competent authority must have regard, but which do not have binding or

mandatory effect, cannot set the framework for future development consent. The resolution

of Question 3 is acte [clair] in the Minister’s favour, in view of the dicta of the CJEU in Case

C-321/18, Terre wallonne ASBL at §§42-44; and Case C-09/22 St Teresa’s Gardens at §§49-

50, where it was provided that ‘provisions of purely indicative value’ do not set the

framework for future development consent where they are not ‘binding on the authorities

with competence to grant development consent’; to set the framework, provisions must be

‘of a mandatory nature’ or ‘capable of limiting the discretion enjoyed by those authorities

and thus of excluding certain modalities of implementation of projects which might prove to

be more favourable to the environment’. Under national law, the competent authorities

deciding on applications for development consent are not obliged to act consistently with

and are free to depart from and, indeed, act inconsistently with provisions to which they are

merely required to ‘have regard’.

QUESTION 4: Insofar as concerns the issues raised in the foregoing questions, should Article

3 of the Directive 2001/42 be interpreted and/or applied by Member States and/or their

competent authorities so as to comply with Articles 7 and/or 8 of the UNECE Convention on

Access to Information, Public Participation in Decision-making and Access to Justice in

Environmental Matters done at Aarhus on 25 June 1998, to the fullest extent possible?

13. The Minister’s position is that the determination of Question 4 before the CJEU is not

necessary in order to enable the referring court to give judgment. The CJEU jurisprudence

is clear that the justification for a reference under Article 267 TFEU is not to ‘enable[]

advisory opinions on general or hypothetical questions to be delivered’ but rather must be

‘necessary for the effective resolution of a dispute’ (Case C-222/23, Toplofikatsia Sofia, §39).

14. The Applicant has not identified any basis on which the answer to Question 4 could

affect the resolution of the proceedings. This is particularly so where the CJEU is clear that

the assessment of the criteria enumerated in Article 3(2)(a) of the SEA Directive must be

carried out in the light of the objective of the Directive, namely to make decisions likely to

have significant environmental effects subject to an environmental assessment, and that

therefore the provisions of the Directive must be interpreted broadly: see Case C 290/15,

D’Oultremont, at §§39-40, §47.”

8. In a contrary sense, the applicants submitted as follows:

“Question 3

Does the notion of a framework for future development consent in Article 3(2)(a) of Directive

2001/42 exclude a plan where domestic law provides for a binding obligation on competent

authorities to consider such a plan in deciding on the grant of development consent, but not

a binding obligation to comply with it?

Answer to Question 3:

No, the notion of a framework for future development consent in Article 3(2)(a) of the SEA

Directive does not exclude a plan which must be considered by a competent authority before

granting development consent, but to which such competent authority is not bound to follow.

Plans that are statutorily required to be considered by a competent authority are not ‘purely

indicative’ in that they cannot be ignored and have a mandatory dimension. Such plans are

required under domestic statute to be considered and are therefore mandatory

considerations and have a ‘statutory value’. In light of this, such plans influence, and

therefore set the framework for development consent, and as such are likely to have

significant effects on the environment.

The fact that such plans can, in principle, be departed from by a competent authority does

not have the effect of removing such plans from being a ‘framework for future development’

within the meaning of Article 3(2)(a). If that were the case, the only plan which would be

caught by Article 3(2)(a) would be one which contained specific directly binding rules, i.e.

special planning policy requirements (‘SPPRs’) from which the relevant [competent]

authority in this case cannot depart from and must follow, such a limitation would be

inconsistent with the objective of the SEA Directive.

[Word Count:214]

Question 4

Insofar as concerns the issues raised in the foregoing questions, should Article 3 of the

Directive 2001/42 be interpreted and/or applied by Member States and/or their competent

authorities so as to comply with Articles 7 and/or 8 of the UNECE Convention on Access to

Information, Public Participation in Decision-making and Access to Justice in Environmental

Matters done at Aarhus on 25 June 1998, to the fullest extent possible?

Answer to Question 4:

Yes, the fact that the SEA Directive predates the ratification by the EU of the Aarhus

Convention does not mean that the SEA Directive is not required to be interpreted in

compliance with its provisions.

The European Community was a party to the Aarhus Convention at the time that the SEA

Directive came into force. The fact that the SEA Directive does not refer to the Aarhus

Convention in its recitals is not determinative of the issue.

The SEA Directive at recital 7 refers to the Espoo Convention. The Kiev Protocol is a protocol

to the Espoo Convention. The EU, when approving the Kiev Protocol, declared that the SEA

Directive covered matters governed by that protocol, and it is responsible for the

performance of those obligations resulting from the Protocol which are covered by

Community law. The recitals to the Kiev Protocol expressly acknowledge the Aarhus

Convention and mirror its provisions on public participation by virtue inter alia of the

provisions of Article 8 of that Protocol.

Furthermore, Article 216(2) TFEU provides that agreements concluded by the EU are binding

on its institutions and member states. Furthermore, it is well established that community

law must be consistent with the Aarhus Convention, having regard to the ratification of the

Aarhus Convention by the EU.

[Word Count:213]

...

However, the Applicants would propose that Question 4 is broadened out as follows

(additions in with red underline text):

‘Insofar as concerns the issues raised in the foregoing questions, should Article 3 of the

Directive 2001/42 be interpreted and/or applied by Member States and/or their competent

authorities so as to comply with Articles 7 and/or 8 of the UNECE Convention on Access to

Information, Public Participation in Decision-making and Access to Justice in Environmental

Matters done at Aarhus on 25 June 1998, and / or Article 8 of the Kiev Protocol on Strategic

Environmental Assessment to the Convention on Environmental Impact Assessment in a

Transboundary Context, to the fullest extent possible?’

11. As previously outlined in the Applicant’s primary submissions. The EU declaration in

respect of the Kiev Protocol states:

‘Moreover the European Community declares that it has already adopted legal instruments,

including Directive 2001/42/EC of the European Parliament and the Council concerning the

assessment of the effects of certain plans and programmes on the environment, binding on

its Member States, covering matters governed by this Protocol, and will submit and update,

as appropriate, a list of those legal instruments to the Depositary in accordance with Article

23(5) of the Protocol.’

12. The Kiev Protocol is a protocol to the Espoo Convention. The Espoo Convention itself

is referenced in recital 7 to the SEA Directive.

13. As explained by the [CJEU] in A and Others C-24/19 at §49, the Espoo Convention

is relevant to the interpretation of the SEA Directive, as well as other international

undertakings, which may include the Aarhus Convention:

‘Moreover, a broad interpretation of the concept of “plans and programmes” is consistent

with the European Union’s international undertakings, such as those resulting, inter alia,

from Article 2(7) of the Espoo Convention.’

14. It would be unlikely that the SEA Directive is to be interpreted differently depending

on whether the situation was transboundary (in which case the Espoo Convention would

apply) or purely domestic (in which case the Aarhus Convention would apply).

15. Moreover, the Court’s Judgment cited the opinion of the Advocate General in

D'Oultremont and Others v Région Wallonne, C-290/15, wherein it was stated that:

‘It seems inconceivable, however, that those international agreements should provide a

blueprint for the SEA Directive so far as concerns the definition of the terms plan and

programme. Neither the Aarhus Convention nor the Kiev Protocol formed part of EU law at

the time when the SEA Directive was adopted. Although the Convention existed, it is not

mentioned in the SEA Directive; in particular, it is not the purpose of that directive to

implement the Convention. While recital 7 of the directive predates the Protocol, which was

concluded later, and, according to a declaration issued at the time when the Protocol was

ratified, serves to implement it, it does not follow even from this that the Protocol requires

that the directive be interpreted restrictively.’

16. The Applicants would submit that this court has found that Question 4 arises for a

reference in part owing to the comments of the Advocate General regarding whether the

SEA Directive ought to be interpreted in light of the Aarhus Convention, and that by

extension and applying the same rationale, the Applicants invite this court to consider the

additional wording proposed to be added to Question 4.”

February 2026 – the formal judgment for reference

9. One of the problems I had on receipt of the foregoing, if you want to call it a problem, is

that both sides’ submissions were so excellent that it required quite some thought on my part to

work out a way through. In the end I will be adopting points from both submissions.

10. Thus, in the formal judgment for reference, to be published separately, I will be reconfiguring

the questions in the light of the foregoing and I will attempt now to explain the outcome.

11. While there will be some general redrafting of the questions, there are essentially three

major issues that arise on foot of the foregoing submissions:

(i) is question 3 on non-SPPR text properly acte clair in favour of the State;

(ii) should question 4 (in whatever form) include reference to the Kyiv Protocol; and

(iii) is what was draft question 4 (on Aarhus-compliant interpretation) an appropriate

independent question.

12. On 4 February 2026, a draft of the present judgment (and of the judgment for reference)

was sent to the parties to give an opportunity to identify any errors in either draft judgment. The

rules of engagement in such a situation are that the draft is without prejudice to the right of the

court ultimately to issue a judgment in whatever form or with whatever content it considers

appropriate.

13. Any comments must be emailed to the relevant judicial assistant and uploaded to ShareFile

in writing by the notified deadline, and should not be to reargue the substance (submissions to that

effect will be disregarded) but are confined to matters such as:

(a) informing the court as to whether a formal judgment is required, and if so on what

issues;

(b) informing the court as to whether a judgment might be oral or written or partly in

both modes;

(c) any typographical, factual or legal errors in the decision;

(d) any redaction of personal information that the party wishes to request;

(e) in the event that the court proposes to place pivotal reliance on any authority or

material not previously adverted to, as opposed to where such material merely

reinforces a point that the court was making in any event, any comment as to why

such material should not lead to the proposed conclusion; identifying points that the

court proposes to address but that the parties consider it unnecessary to address;

(f) requesting the court to decide a point that, while unnecessary to decide, is one the

party considers could beneficially be decided;

(g) identifying significant procedural, factual or legal points that the party considers that

the court was required to address but has not addressed or not provided reasons

for; and

(h) any other suggestions as to the wording (as opposed to substance) of the decision

if the proposed wording causes any significant issue for a party for any identified

reason.

14. It is then entirely a matter for the court as to whether to list the matter for mention, or

whether to simply give judgment with or without amendment to respond to any such comments or

for any other reason that appears appropriate to the court. Any judgment may be given without

further notice following the expiry of the specified period, whether comments are made or not. That

period will not be extended save in exceptional circumstances. All parties involved are requested to

positively confirm to the court the position including if they have no observations on the draft

legitimately falling within the foregoing parameters. Overall the draft judgment procedure is a

concession which parties can engage with but must do so with immediate dispatch, discipline and

focus – it is not the opening of a new phase of the litigation that gives rise to “an entitlement to

elaborate procedures at every point” (to use a phrase of O’Donnell C.J. (Dunne, Charleton and Baker

JJ. concurring) in O’Sullivan v. Health Service Executive [2023] IESC 11 (Unreported, Supreme

Court, 10 May 2023) at para. 39); and still less should the procedure invite the perhaps “serious

error, to which lawyers are prone, to approach any such case on the tacit assumption that only

procedures which approximate to a criminal trial are fair, and anything which departs from that is

somehow dubious” (O’Donnell J. in O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75,

[2017] 3 I.R. 751, [2018] 1 I.L.R.M. 245, 780).

15. For the avoidance of doubt, draft judgments are not public domain materials and, while they

can be shared between the lawyers concerned and their clients, they are not intended for publication

(indeed given their lack of status it is impracticable to refer to them, even in the context of

considering such drafts in other litigation, until the judgment is formally issued) or for any other

transmission save for the legitimate purposes of the litigation. Therefore anyone with information

as to the text, content or proposed outcome of any draft is required not to transmit such information

to others save solely by way of private transmission for the legitimate purposes of the litigation and

subject to a similar restriction on any recipient (see Attorney General v. Crosland (No. 2) [2021]

UKSC 58, [2022] 1 W.L.R. 367, [24/01/2022] T.L.R. 1 which discusses why restriction on publication

of draft judgments is in the interests of the administration of justice). The contents of this paragraph

constitute an immediately effective direction of the court to the parties and anyone having notice of

the draft judgment with effect from the date of circulation of the draft.

16. The deadline for such comments from the parties was to be 09:30 on Monday 9 February

2026. In the end there were no substantive comments, although the applicants helpfully pointed

out minor corrections.

Issue 1 – Non-SPPR text

17. On the first issue I am afraid that on further reflection I find the State’s logic compelling.

18. The critical point is that in the judgment of 9 March 2023, NJ and OZ v An Bord Pleanála and

Others, C-09/22, ECLI:EU:C:2023:176 (Site de St Teresa’s Gardens) the CJEU said as follows at 50

(emphasis added):

“50 Only acts of a mandatory nature are capable of limiting the discretion enjoyed

by those authorities and thus of excluding certain modalities of implementation of

projects which might prove to be more favourable to the environment, which is why such

acts must be subject to an environmental assessment within the meaning of Directive

2001/42.”

19. The non-SPPR text of the guidelines simply can’t be shoe-horned within this formula. It is

not an act capable of limiting the discretion of a council or of excluding certain modalities of

implementation. As put in Cork County Council v. Minister for Housing, Local Government and

Heritage [2021] IEHC 683 (Unreported, High Court, 5 November 2021) at 36, no kind of compliance

is required by a have-regard obligation, merely regard: a point that has been relied on in a very

large number of legal contexts and that isn’t in doubt – see for example Jennings v. An Bord Pleanála

[2022] IEHC 61 (Unreported, High Court, Holland J., 7 February 2022) at paras. 12-17; EPUK

Investments Ltd v. Environmental Protection Agency [2023] IEHC 59 (Unreported, High Court,

Holland J., 10 February 2023) at para. 413; Coyne v. An Bord Pleanála [2023] IEHC 412 (Unreported,

High Court, Holland J., 21 July 2023) at paras. 21 and 32; Concerned Residents of Coolkill, Sandyford

Downs and Lamb's Brook v. An Bord Pleanála [2025] IEHC 265 (Unreported, High Court, Holland J.,

19 May 2025), para. 190; Fernleigh Residents Association CLG v. An Coimisiún Pleanála [2025] IEHC

655 (Unreported, High Court, Holland J., 28 November 2025) at 56; Foran v. An Coimisiún Pleanála

& Glenveagh [2026] IEHC 23 (Unreported, High Court, Holland J., 23 January 2026) at 34; Duffy v.

Minister of Housing, OPR & Clare County Council [2026] IEHC 46 (Unreported, High Court, Holland

J., 30 January 2026) at 8.

20. Thus the fact that there is a duty to consider non-binding guidelines doesn’t translate into a

limit on discretion or into excluding modalities of implementation – it doesn’t exclude anything. This

point is, on reflection, acte clair against the applicants and must fail.

21. To refer it would be in effect to ask the CJEU to change its mind about a recent decision. I

am not against asking people to change their mind (after all I am doing so myself now), but one has

to have something solid in hand, especially when making such an impertinent request upwards. In

C-821/25 Save Leitrim, I am currently inviting the CJEU to change its mind in a manner of speaking

about charges for access to environmental information, but am doing so on the basis of a significant

change in the factual and legal context (and indeed on the basis that the significance of this change

is supported by academic opinion – I could also have referred to the paper by Dr Áine Ryall, ‘Access

to Justice in Environmental Matters in Member States of the EU: the impact of the Aarhus Convention’

Jean Monnet Working Paper No. 5/16 (2016), https://www.jeanmonnetprogram.org/wp-

content/uploads/JMWP-05-Ryall.pdf, p. 7, citing Koester V., “The Aarhus Convention Compliance

Mechanism and Proceedings before its Compliance Committee” in Banner C. (ed.), The Aarhus

Convention: A Guide for UK Lawyers (Hart/Bloomsbury 2015) p. 205; Ebbesson J., “Access to Justice

at the National Level: Impact of the Aarhus Convention and European Union Law” p. 251 and Tanzi

A. and Pieta C., “The Interplay between EU Law and International Law Procedures in Controlling

Compliance with the Aarhus Convention by the EU Member States” p. 380, both contributions in

Pallemaerts M. (ed.), The Aarhus Convention at Ten: Interactions and Tensions between

Conventional International Law and EU Environmental Law (Europa Law Publishing 2011) – but this

was not immediately to hand when composing the judgment for reference in that case).

22. The unfortunate reality of the situation is that Directive 2001/42/EC of the European

Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and

programmes on the environment (the SEA directive) is only a partial implementation of the Aarhus

Convention. That is confirmed by the limitation necessitated by the concept of the “framework” for

future development, to which the CJEU attaches some significance (as in Site de St Teresa’s

Gardens). And while one can argue that compliance with Aarhus should be secured as far as the

text permits (see below), it can’t be secured in a sense contrary to the text (as construed by the

CJEU), which is the false premise underlying the applicants’ position on this question.

Issue 2 – Kyiv Protocol

23. As regards whether to mention the Kyiv Protocol in the question, the logic for doing so is the

same as that for mentioning the Aarhus Convention. Both were approved on behalf of the EU by

Council decision so both have similar status to that extent. So if question 4, in whatever form, goes

ahead then Kyiv should be included.

Issue 3 – an Aarhus Convention -compliant reading

24. As I have already said, the submissions on both sides were particularly excellent so it was a

lonely task to decide between the many possible alternative formulations of this issue, ranging from

the State’s preference of deleting it altogether, their consolation prize of having it as an afterthought

appended to the substantive questions (which was how I was leaning in the No. 1 judgment subject

to submissions), to the applicants’ preference of having it in lights (my original preference in the

draft of the No. 1 judgment). I also considered a half-way house of amalgamating it with one or

more of the other questions (and there were numerous ways of doing that – I considered at least

two of them), or of separating the ramifications regarding interpretation from those regarding

application. That’s at least six possibilities, all of which got serious thought.

25. Unfortunately the only one of these options that made any kind of sense when put down on

paper was the applicants’ preference. (As Frank J. put it (cited by Prof Bergholtz in “Some Thoughts

on Judges' Decision-making” (2007) 51 Scandinavian studies in law pp. 77–88,

https://scandinavianlaw.se/pdf/51-3.pdf), the problem is that some decisions “won’t write”). Either

there is a general interpretative question here or there is nothing. So I am going with the general

question, which only makes sense as a first question, contrary to my initial view in the No. 1

judgment (see above on the need to be prepared to change one’s mind in response to submissions).

The relevance of this will still be in effect limited to the context set by the later questions, but that

is something to be made clear in explaining such relevance rather than in awkwardly trying to add

terms and conditions to the wording of the question itself.

Order

26. For the foregoing reasons, it is ordered that the judgment for reference proceed on the basis

of reconfigured questions along the lines indicated in this judgment.