High Court refers preliminary ruling on whether apartment planning guidelines require Strategic Environmental Assessment under EU Directive.

[2026] IEHC 67

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. 3)

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

Subject-matter of the dispute

1. This request for a preliminary ruling concerns the interpretation of Article 3 of Directive

2001/42 and in particular the notion of plans or projects that “which set the framework for future

development consent” of projects within the potential scope of environmental impact assessment

(EIA) as envisaged by Article 3(2)(a) of that Directive.

2. The request is being made in proceedings concerning a challenge to the validity of the Design

Standards for Apartments, Guidelines for Planning Authorities published by the Minister for Housing,

Local Government and Heritage (the Minister) without first carrying out strategic environmental

assessment (SEA) under that Directive.

Procedural history

3. The applicants commenced these proceedings on 3 October 2025.

4. On 14 November 2025, the Minister wrote to the applicants to inform them that he had

“resolved to take the pragmatic approach of preparing a draft National Planning Statement for the

approval of the Government, with a view to issuing same under section 25 of the Planning and

Development Act 2024 ... to replace the Planning Design Standards for Apartments Guidelines”. The

intention was to subject such a statement to SEA prior to adoption. Such course of action was

expressly stated to be “strictly without prejudice to the Minister’s position that the Planning Design

Standards for Apartments Guidelines were lawfully issued under section 28 of the [Planning and

Development Act 2000 (the 2000 Act)], did not require to be the subject of an SEA and are valid,

and the Respondents will continue fully to defend the proceedings on that basis”.

5. The matter was heard on 4 December 2025.

6. The guidelines consist of both non-binding text and binding policy requirements. The

referring court has taken the view that it is acte clair that the non-binding text of the guidelines does

not require assessment under the Directive: see judgment of 9 March 2023, NJ and OZ v An Bord

Pleanála and Others, C-9/22, ECLI:EU:C:2023:176 (Site de St Teresa’s Gardens) at §50. However

issues remain regarding the need for assessment of the binding provisions of the guidelines.

7. In those circumstances the referring court is staying the proceedings and referring the

questions below to the Court of Justice for a preliminary ruling.

Legal context

Relevant international law measures

8. Articles 7 and 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

(https://unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf) provide:

“Article 7

PUBLIC PARTICIPATION CONCERNING PLANS, PROGRAMMES AND POLICIES RELATING TO

THE ENVIRONMENT

Each Party shall make appropriate practical and/or other provisions for the public to

participate during the preparation of plans and programmes relating to the environment,

within a transparent and fair framework, having provided the necessary information to the

public. Within this framework, article 6, paragraphs 3, 4 and 8, shall be applied. The public

which may participate shall be identified by the relevant public authority, taking into account

the objectives of this Convention. To the extent appropriate, each Party shall endeavour to

provide opportunities for public participation in the preparation of policies relating to the

environment.

Article 8

PUBLIC PARTICIPATION DURING THE PREPARATION OF EXECUTIVE REGULATIONS AND/OR

GENERALLY APPLICABLE LEGALLY BINDING NORMATIVE INSTRUMENTS

Each Party shall strive to promote effective public participation at an appropriate stage, and

while options are still open, during the preparation by public authorities of executive

regulations and other generally applicable legally binding rules that may have a significant

effect on the environment.

To this end, the following steps should be taken:

(a) Time-frames sufficient for effective participation should be fixed;

(b) Draft rules should be published or otherwise made publicly available; and

(c) The public should be given the opportunity to comment, directly or through

representative consultative bodies.

The result of the public participation shall be taken into account as far as possible.”

9. Article 6 of the Convention was also relied on in submissions.

10. The parties also relied on the Espoo Convention on Environmental Impact Assessment in a

Transboundary Context.

11. Article 2(5) of the Kyiv Protocol to the Espoo Convention

(https://unece.org/fileadmin/DAM/env/eia/documents/legaltexts/protocolenglish.pdf) provides:

“5. ‘Plans and programmes’ means plans and programmes and any modifications to them

that are:

(a) Required by legislative, regulatory or administrative provisions; and

(b) Subject to preparation and/or adoption by an authority or prepared by an authority for

adoption, through a formal procedure, by a parliament or a government.”

12. Article 8 of the Kyiv Protocol provides:

“Article 8

PUBLIC PARTICIPATION

1. Each Party shall ensure early, timely and effective opportunities for public participation,

when all options are open, in the strategic environmental assessment of plans and

programmes.

2. Each Party, using electronic media or other appropriate means, shall ensure the timely

public availability of the draft plan or programme and the environmental report.

3. Each Party shall ensure that the public concerned, including relevant non-governmental

organizations, is identified for the purposes of paragraphs 1 and 4.

4. Each Party shall ensure that the public referred to in paragraph 3 has the opportunity to

express its opinion on the draft plan or programme and the environmental report within a

reasonable time frame.

5. Each Party shall ensure that the detailed arrangements for informing the public and

consulting the public concerned are determined and made publicly available. For this

purpose, each Party shall take into account to the extent appropriate the elements listed in

annex V.”

Relevant European Union law measures

13. Article 216(2) TFEU was relied on in submissions.

14. Article 3 of Directive 2001/42 provides:

“Article 3

Scope

1. An environmental assessment, in accordance with Articles 4 to 9, shall be carried out for

plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant

environmental effects.

2. Subject to paragraph 3, an environmental assessment shall be carried out for all plans

and programmes,

(a) which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste

management, water management, telecommunications, tourism, town and country planning

or land use and which set the framework for future development consent of projects listed

in Annexes I and II to Directive 85/337/EEC, or

(b) which, in view of the likely effect on sites, have been determined to require an

assessment pursuant to Article 6 or 7 of Directive 92/43/EEC.

3. Plans and programmes referred to in paragraph 2 which determine the use of small areas

at local level and minor modifications to plans and programmes referred to in paragraph 2

shall require an environmental assessment only where the Member States determine that

they are likely to have significant environmental effects.

4. Member States shall determine whether plans and programmes, other than those referred

to in paragraph 2, which set the framework for future development consent of projects, are

likely to have significant environmental effects.

5. Member States shall determine whether plans or programmes referred to in paragraphs

3 and 4 are likely to have significant environmental effects either through case-by-case

examination or by specifying types of plans and programmes or by combining both

approaches. For this purpose Member States shall in all cases take into account relevant

criteria set out in Annex II, in order to ensure that plans and programmes with likely

significant effects on the environment are covered by this Directive.

6. In the case-by-case examination and in specifying types of plans and programmes in

accordance with paragraph 5, the authorities referred to in Article 6(3) shall be consulted.

7. Member States shall ensure that their conclusions pursuant to paragraph 5, including the

reasons for not requiring an environmental assessment pursuant to Articles 4 to 9, are made

available to the public.

8. The following plans and programmes are not subject to this Directive:

- plans and programmes the sole purpose of which is to serve national defence or

civil emergency,

- financial or budget plans and programmes.

9. This Directive does not apply to plans and programmes co-financed under the current

respective programming periods for Council Regulations (EC) No 1260/1999 and (EC) No

1257/1999.”

15. Articles 5 and 10 of, and Annex I to, the Directive were also relied on in submissions.

16. The Aarhus Convention was approved on behalf of the European Community by Council

Decision 2005/370.

17. The Kyiv Protocol was approved on behalf of the European Community by Council Decision

2008/871.

Relevant domestic law measures

18. The following transpose Directive 2001/42 into Irish law:

(i) European Communities (Environmental Assessment of Certain Plans and

Programmes) Regulations 2004 (S.I. No. 435 of 2004)

(https://www.irishstatutebook.ie/eli/2004/si/435/made/en/print);

(ii) European Communities (Environmental Assessment of Certain Plans and

Programmes) (Amendment) Regulations 2011 (S.I No. 200 of 2011)

(https://www.irishstatutebook.ie/eli/2011/si/200/made/en/print); and

(iii) section 28(1D) of the 2000 Act.

19. Section 28 of the 2000 Act is now repealed but the repeal does not affect the continuing

effect of the guidelines. The version in force at the material time provided:

“28.—(1) The Minister may, at any time, issue guidelines to planning authorities regarding

any of their functions under this Act and planning authorities shall have regard to those

guidelines in the performance of their functions.

(1A) Without prejudice to the generality of subsection (1) and for the purposes of that

subsection a planning authority in having regard to the guidelines issued by the Minister

under that subsection, shall—

(a) consider the policies and objectives of the Minister contained in the guidelines

when preparing and making the draft development plan and the development plan,

and

(b) append a statement to the draft development plan and the development plan

which shall include the information referred to in subsection (1B).

(1B) The statement which the planning authority shall append to the draft development plan

and the development plan under subsection (1A) shall include information which

demonstrates—

(a) how the planning authority has implemented the policies and objectives of the

Minister contained in the guidelines when considering their application to the area

or part of the area of the draft development plan and the development plan, or

(b) if applicable, that the planning authority has formed the opinion that it is not

possible, because of the nature and characteristics of the area or part of the area of

the development plan, to implement certain policies and objectives of the Minister

contained in the guidelines when considering the application of those policies in the

area or part of the area of the draft development plan or the development plan and

shall give reasons for the forming of the opinion and why the policies and objectives

of the Minister have not been so implemented.

(1C) Without prejudice to the generality of subsection (1), guidelines under that subsection

may contain specific planning policy requirements with which planning authorities, regional

assemblies and the Board shall, in the performance of their functions, comply.

(1D) A strategic environmental assessment or an appropriate assessment shall, as the case

may require, be conducted in relation to a draft of guidelines proposed to be issued under

subsection (1).

(2) Where applicable, the Board shall have regard to any guidelines issued to planning

authorities under subsection (1) in the performance of its functions.

(3) Any planning guidelines made by the Minister and any general policy directives issued

under section 7 of the Act of 1982 prior to the commencement of this Part and still in force

immediately before such commencement shall be deemed to be guidelines under this

section.

(4) The Minister may revoke or amend guidelines issued under this section.

(5) The Minister shall cause a copy of any guidelines issued under this section and of any

amendment or revocation of those guidelines to be laid before each House of the Oireachtas.

(6) A planning authority shall make available for inspection by members of the public any

guidelines issued to it under this section.

(7) The Minister shall publish or cause to be published, in such manner as he or she considers

appropriate, guidelines issued under this section.”

20. The section as enacted is at

https://www.irishstatutebook.ie/eli/2000/act/30/section/28/enacted/en/html#sec28. It was

amended in 2010 (https://www.irishstatutebook.ie/eli/2010/act/30/section/20/enacted/en/html),

2015 (https://www.irishstatutebook.ie/eli/2015/act/63/section/2/enacted/en/html) and 2018

(https://www.irishstatutebook.ie/eli/2018/act/16/section/20/enacted/en/html).

21. The Planning and Development (Amendment) Act 2025 inserts section 44B

(https://www.irishstatutebook.ie/eli/2025/act/9/section/29/enacted/en/html#sec29) into the 2000

Act which would potentially add to the legal effect of the guidelines, but this is not relevant to the

present case. Section 44B is not a currently operative provision of domestic law (it has not been

commenced and was not enacted as of the date of the guidelines, having been enacted on 23 July

2025) so (while relied on by the applicants) is not relevant in present circumstances.

22. As regards development plans (which are modified by the impugned guidelines), section 10

of the Planning and Development Act 2000

(https://revisedacts.lawreform.ie/eli/2000/act/30/revised/en/html#SEC10) provides for the making

of development plans, which may be subject to SEA:

“(5A) Where required, a strategic environmental assessment or an appropriate assessment

of a draft development plan shall be carried out.”

23. The parties also relied on the following domestic legislation:

(i) section 10 of the Planning and Development Act 2000 (as was in force at the date

of the issuing of the guidelines);

(ii) section 34 of the Planning and Development Act 2000 (as was in force at the date

of the issuing of the guidelines);

(iii) section 37 of the Planning and Development Act 2000, (as amended) (LRC Version

updated to 2 October 2025); and

(iv) European Union (Environmental Assessment of Certain Plans and Programmes)

(Amendment) Regulations 2025 (S.I. No. 463 of 2025).

Facts

24. On 8 July 2025, the Minister issued and published the Design Standards for Apartments,

Guidelines for Planning Authorities pursuant to section 28 of the 2000 Act.

25. On 29 July 2025, the Minister confirmed that no SEA or screening for SEA was carried out in

respect of the guidelines prior to their publication. It appeared in the course of these proceedings

that compliance with Articles 7 and/or 8 of the Aarhus Convention and, one can reasonably conclude

a fortiori, Article 8 of the Kyiv Protocol was not in fact considered when adopting the guidelines.

26. The guidelines (https://www.gov.ie/en/department-of-housing-local-government-and-

heritage/publications/design-standards-for-apartments-guidelines-for-planning-authorities/)

include have-regard-to text concerning apartment design standards, but also includes binding

specific planning policy requirements (SPPRs) under section 28(1C) of the 2000 Act as follows:

“Specific Planning Policy Requirement 1

(A) With the exception of social housing developments, social/affordable housing provided

for under Part V the Act or schemes to provide housing for older persons where a specific

mix of unit sizes may be required, such as in accordance with a Housing Need and

Demand Assessment (HNDA), there shall be no restrictions within statutory plans in

relation to the mix of unit sizes or types to be provided within apartment developments.

There shall be no minimum or maximum requirements for apartments with a certain

number of bedrooms.

(B) Where any such restriction or requirement is set out within a statutory plan, this Specific

Planning Policy Requirement shall apply to any single apartment scheme and there shall

be no restriction in relation to the mix of unit sizes or types and there shall be no

minimum requirements for apartments with a certain number of bedrooms within the

development, except in the circumstances set out above.

…

Specific Planning Policy Requirement 2

The following minimum apartment floor areas shall apply and statutory plans shall not

specify minimum floor areas that exceed the minimum floor areas set out below:

• Studio apartment (1 person) 32 sq.m

• 1-bedroom apartment (2 persons) 45 sq.m

• 2 bedroom apartment (3 persons) 63 sq.m

• 2-bedroom apartment (4 persons) 73 sq.m

• 3-bedroom apartment (4 persons) 76 sq.m

• 3-bedroom apartment (5 persons) 90 sq.m

The floor area parameters set out above shall generally apply to apartment schemes and do

not apply to purpose-built and managed student housing.

…

Specific Planning Policy Requirement 3

In relation to the minimum number of dual aspect apartments that may be provided in any

single apartment scheme, the following shall apply:

(i) A minimum of 25% of units within a development shall be required to be dual aspect.

Statutory plans shall not specify minimum requirements that exceed the

requirements of this Specific Planning Policy Requirement.

(ii) For building refurbishment schemes on sites of any size or urban infill schemes on

sites of up to 0.25ha, planning authorities may exercise further discretion to consider

dual aspect unit provision at a level lower than the 25% minimum outlined above

on a case-by-case basis, but subject to the achievement of overall high design

quality in other aspects.

…

Specific Planning Policy Requirement 4

Ground level apartment floor to ceiling heights shall be a minimum of 2.7m. For building

refurbishment schemes on sites of any size or urban infill schemes on sites of up to 0.25ha,

planning authorities may exercise discretion on a case-by case basis, subject to overall

design quality.

…

Specific Planning Policy Requirement 5

There shall be no requirement within statutory plans or within an individual scheme in

respect of a minimum number of units per floor per core.

...

Specific Planning Policy Requirement 6

The provision of new Communal, Community and Cultural facilities within apartment

schemes shall only be required in specific locations identified within the development plan

and shall not be required on a blanket threshold-based approach in individual apartment

schemes.

Specific Planning Policy Requirement 7

There shall be a presumption against granting planning permission for shared

accommodation/co-living development unless the proposed development is required to meet

specific demand identified by a local planning authority further to a Housing Need and

Demand Assessment (HNDA) process.

Specific Planning Policy Requirement 8

(A) (i) There shall be no requirement or restriction in relation to the provision of en-suite

bathrooms for single study bedrooms within Purpose Built Student Accommodation

schemes.

(ii) The minimum required area for a single study bedroom without en-suite facilities is

8 sq.m and the minimum required area for a single study bedroom with en-suite facilities

is 11.5 sq.m; and statutory plans may not set out minimum required areas that exceed

the minimum required areas set out within this SPPR. areas set out within this SPPR.

(iii) The minimum space requirements for kitchen/dining/living areas serving 10 and 12

persons are 3.6 sq.m and 3.3 sq.m per person, respectively; and statutory plans may

not set out minimum required areas that exceed the minimum required

(B) Where any other requirement or restriction is set out within a statutory plan, this Specific

Planning Policy Requirement shall apply to any single student accommodation scheme.”

27. In summary, the SPPRs in the impugned guidelines constitute binding legal requirements

relating to the design of apartments which will affect (subject to other applicable legal requirements)

the number of housing units within a given project and/or their internal features and/or (to the

extent that it is consequential on internal features) their external appearance. Save to the extent

to which matters flow from the design features, the SPPRs will not directly affect the number,

location, size, operating conditions or funding of apartment projects themselves.

28. Each planning authority has made a development plan and such plans have in fact been

subject to SEA so far as the referring court is aware. The referring court draws the conclusion from

the fact that such plans deal with matters such as zoning that this was legally required and not a

voluntary act. Planning authorities will now be required to apply the SPPRs in the impugned

guidelines in preference to any contrary provision in their own adopted city or county development

plans.

29. Therefore the binding SPPRs in the contested guidelines relating to the design of apartments

will directly derogate from other plans that were required to, and/or were in fact, subject to

assessment under that directive.

30. The impugned guidelines were adopted under subsections (1C) (the SPPRs) and (1) (other

text). While inaccurately entitled “guidelines”, instruments adopted under section 28 are binding

insofar as they include SPPRs, and subject to a have-regard-to duty insofar as concerns other text

within the guidelines. The remaining text of the guidelines (apart from the SPPRs quoted above) is

not directly binding, but planning authorities and An Coimisiún Pleanála (ACP) are required to have

regard to such text under section 28(1) and (2) of the 2000 Act.

31. Separate guidelines, the Sustainable Residential Development and Compact Settlements

Guidelines for Planning Authorities (https://www.gov.ie/en/department-of-housing-local-

government-and-heritage/publications/sustainable-residential-development-and-compact-

settlements-guidelines-for-planning-authorities/) were also adopted under this provision in January

2024, and address matters related to other features of apartment developments such as density.

The first question

32. The first question is:

Should Article 3 of Directive 2001/42 be interpreted and/or applied so as to give

effect to Articles 7 and/or 8 of the Aarhus Convention and/or Article 8 of the Kyiv

Protocol to the Espoo Convention to the fullest extent possible?

33. The applicants’ proposed answer is Yes, the fact that the Directive predates the ratification

by the EU of the Aarhus Convention does not mean that the 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 directive does not refer to the

Aarhus Convention in its recitals is not determinative of the issue. The directive at recital 7 refers

to the Espoo Convention. The Kyiv Protocol is a protocol to the Espoo Convention. The EU, when

approving the Kyiv Protocol, declared that the 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 Kyiv 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.

34. The respondent’s proposed answer is that the determination of the question 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’ (judgment of 16 May 2024, ‘Toplofikatsia Sofia’ EAD, C-222/23, ECLI:EU:C:2024:405,

§39). The applicants have not identified any basis on which the answer to the question 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 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 the judgment of 27 October 2016, Patrice D'Oultremont and Others v Région

wallonne, C-290/15, ECLI:EU:C:2016:816, at §§39-40, §47.

35. The referring court’s proposed answer is Yes. As to the objection, the referring court’s

response is that the question does properly arise and is not a hypothetical or advisory issue, because

it is relevant to the interpretation and/or application of the directive in the concrete circumstances

of the case and specifically to the issues raised in the second and third questions. As to the

substance, an interpretation and/or application of the Directive in a manner consistent with the

Aarhus Convention and the Kyiv Protocol would be consistent with the necessary broad interpretation

of the Directive and give effect to the international obligations of the EU and Member States. The

referring court has some concerns about the fact that compliance with Articles 7 and/or 8 of the

Aarhus Convention and indeed Article 8 of the Kyiv Protocol were not expressly considered when

adopting the guidelines. If the Aarhus Convention and Kyiv Protocol are not relevant to the

interpretation and/or application of the directive, then a gap may arise whereby the adoption of a

legal instrument such as the guidelines at issue in the main proceedings could take place without

compliance with those provisions. The reference in the question to an Aarhus Convention/ Kyiv

Protocol-compliant reading is not academic and is relevant to the interpretation of the Directive in

the concrete circumstances of the case. The need for such reading reinforces the requirement of a

broad reading of the Directive that would cover internal design standards of the type at issue in

these proceedings. The referring court would in that regard respectfully suggest that Advocate

General Kokott’s invocation (opinion delivered on 8 December 2025, Fédération belge du

stationnement ASBL, Interparking SA v Région de Bruxelles-Capitale, C‑771/24,

ECLI:EU:C:2025:1003) of Friedrich Schiller’s warning about the need to assess before committing

forever (“Drum prüfe, wer sich ewig bindet”, from “Das Lied von der Glocke” (1799), in Musen-

Almanach für das Jahr 1800 (Tübingen, J.G. Cotta, 1800)) is highly pertinent and gets to the core

of the issue. The apartments built on the basis of the mandatory requirements of these guidelines

will stand for decades – it is therefore essential that the guidelines be assessed at the strategic level,

since the planning consent process for individual projects will have no option but to follow such

guidelines.

36. The relevance of the question is that if the answer is Yes, this supports a conclusion in favour

of a requirement for assessment of the impugned guidelines, in the context of the issues raised in

the subsequent questions.

The second question

37. The second question is:

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

Article 3(2)(a) of Directive 2001/42 include 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 if they affect

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

within a given project and/or their internal features and/or (to the extent that it

is consequential on internal features) their external appearance even if they do not

directly affect 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)?

38. The applicants’ proposed answer is Yes, such binding legal requirements do come within the

concept 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). Article 3(2)(a) of the directive is not limited to only applying to frameworks

for future development consents in respect of a project itself, as divorced from specific aspects such

as the number of units in an apartment building and the internal features, since these are aspects

which may have a significant effect on the environment. Binding legal requirements in respect of

internal features are not exempt from environmental assessment under Article 3(2)(a) of the

Directive where they would otherwise be lawfully characterised as setting the framework for ‘future

development consent’.

39. The respondent’s proposed answer is No. Binding legal requirements such as the SPPRs in

the guidelines at issue do not ‘set the framework for future development consent’ of projects where

they do not establish a significant body of criteria and detailed rules for the grant and implementation

of apartment developments, inter alia with regard to the location, nature, size and operating

conditions of such developments, or the allocation of resources connected with those developments

(per the judgment of 22 February 2022, Bund Naturschutz in Bayern eV v Landkreis Rosenheim, C-

300/20, ECLI:EU:C:2022:102, §62). The guidelines set criteria only with respect to the internal

design parameters of apartment projects, such as the layout, configuration and size of units. While

such criteria may, as referred to in the text of the second question, affect the number of housing

units within a given apartment project, as well as their internal features and (to the extent that it is

consequential on their internal features) their external appearance, the critical matters of the overall

permissible density range for such a project, and the size and location of apartment developments,

and thus their location, nature, size and operating conditions, are not established in the guidelines

but, rather, by other, separate measures which have been previously subject to SEA (i.e. by relevant

provisions of inter alia the Sustainable Residential Development and Compact Settlements Guidelines

(2024) (https://www.gov.ie/en/department-of-housing-local-government-and-

heritage/publications/sustainable-residential-development-and-compact-settlements-guidelines-

for-planning-authorities/), the Urban Development and Building Height Guidelines (2018)

(https://www.gov.ie/en/department-of-housing-local-government-and-

heritage/publications/urban-development-and-building-height-guidelines-for-planning-authorities/)

and the statutory development plan adopted by the local authority for the area concerned). The

guidelines therefore fall outside the scope of Article 3(2)(a) of the Directive.

40. The referring court’s proposed answer is Yes. Directive 2001/42 should be given a broad

interpretation. The directive does not distinguish between internal and external features in the

context of frameworks for the use of land. In any event, internal design features significantly

influence external features, for example in relation to windows, given the dilution of dual aspect

criteria in the guidelines in question. Binding legal requirements relating to the design of apartments

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

3(2)(a) of the Directive 2001/42 if they affect the number of housing units within a given project

and/or their internal features and/or their external appearance.

41. The relevance of the question is that if the answer is Yes, assessment under the Directive

was required, which did not occur. The guidelines would therefore be declared, to that extent,

invalid as having been adopted in breach of EU law.

The third question

42. The third question is:

If the answer to the second question is No, does the notion of a framework for

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

include 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 if they derogate from other plans

that were required to, and/or were in fact, subject to assessment under that

directive?

43. The applicants’ proposed answer is, if the answer to question 2 is ‘No’, then Yes, such binding

legal requirements (as referred to in question 2) do come within the notion of the framework for

future development per Article 3(2)(a) of the directive, where they derogate from other plans that

are required to be (or were) subject to SEA. Plans and programmes within the meaning of the

Directive include modifications to such plans. This includes acts which, without amending a plan or

programme, nevertheless allow derogation from certain elements of the framework for future

development consent of projects listed in Annexes I and II to Directive 2011/92 as defined by that

plan or programme. Furthermore, once SEA is conducted and an environmental report is completed

pursuant to Article 5 of the directive, that assessment looks at the entire plan or programme – it

does not only address or siphon off part of the plan and provide an assessment and environmental

report of some of the plan or programme (see Article 5(1) and Annex I (a) and (f)). Similarly, Article

10 of the directive provides for monitoring of the implementation of the entire plan or programme

and does not provide for this to be conducted in a piecemeal manner.

44. The respondent’s proposed answer is No. Binding legal requirements, such as the SPPRs in

the guidelines at issue, do not ‘set the framework for future development consent’ of projects if they

derogate from other plans that were required to, or were, in fact, subject to assessment under the

directive. Where provisions such as the SPPRs in the guidelines do not comprise or establish a

significant body of criteria and detailed rules for the grant and implementation of a project listed in

Annexes I and II of Directive 2011/92, inter alia with regard to the location, nature, size and

operating conditions of those projects, or the allocation of resources connected with those projects,

any provisions of another plan disapplied by the SPPRs on the basis that they differ from those SPPRs

also will not comprise criteria and detailed rules with respect to the location, nature, size and

operating conditions of a project listed in Annexes I and II of Directive 2011/92, or the allocation of

resources connected with those projects (see opinion of Advocate General Kokott delivered on 25

January 2018, Raoul Thybaut and Others v Région wallonne, C-160/17, ECLI:EU:C:2018:40 at §41).

45. The referring court’s proposed answer is that this question does not arise because the answer

to the second question is Yes, but if it does arise the answer is Yes. The directive must be given a

broad interpretation. An affirmative answer would be consistent with the judgment of the CJEU in

C-9/22, Site de St Teresa’s Gardens at §43. Thus whether the prior plans being derogated from

were either required to or were in fact subjected to assessment under the directive, such derogation

itself warrants the application of the Directive even if design standards do not of themselves set the

framework for future development consent within the meaning of the directive.

46. The relevance of the question is that if the answer is Yes, assessment under the Directive

was required, which did not occur. The guidelines would therefore be declared, to that extent,

invalid as having been adopted in breach of EU law.

Request for prioritisation under Article 53(3) of the Rules of Procedure of the CJEU

47. It is respectfully requested that an Order be made affording priority to the request, pursuant

to Article 53(3) of the Rules of Procedure, for the following reasons.

48. The impugned guidelines set down national planning policy and guidance in relation to

specified aspects of the planning and development of apartment schemes. The guidelines have been

published in the context of a housing crisis in the State and form part of a suite of planning policies,

measures and guidance designed to facilitate compact growth and increase housing supply. The

applicants have not pursued a stay on the implementation of the guidelines in circumstances where

the referring court afforded the applicants an expedited hearing date. The Minister is concerned

that the existence of an ongoing challenge to the validity of the guidelines may result in a chilling

effect with respect to the making of applications for development consent for apartment

developments in the State, where there is potential for any grants of development consent to be

challenged on the basis of regard to or reliance on the guidelines. The Minister is also concerned

that the questions referred will result in significant uncertainty as to the scope of application of the

Directive pending the resolution of the preliminary reference. It is noted that under Article 53(3) of

the Rules of Procedure, the President of the Court has granted priority to other cases having regard

to the nature of the case and the issues at stake in the main proceedings: see e.g. Knocknamona

(Case C-27/25), Order of the President of the Court dated 20 March 2025 at paragraph 11. The

Minister’s position is that the expeditious resolution of the within proceedings is of significant

importance in light of the factual context outlined herein, and that special circumstances exist which

would justify the making of an Order pursuant to Article 53(3) granting priority to the request. The

applicants do not object and the referring court supports the Minister’s request for such priority as

the CJEU can afford to the reference.

Order

49. For the foregoing reasons, it is ordered that:

(i) the questions set out in this judgment be referred to the CJEU pursuant to Article

267 TFEU;

(ii) the CJEU be respectfully requested to afford such priority to the request over other

cases as it can under Article 53(3) of the Rules of Procedure of the CJEU;

(iii) the CJEU be requested to note that the natural persons referred to in the judgment

have requested the referring court to inform the CJEU that they do not wish their

names to be anonymised for the purposes of the proceedings in the CJEU and

therefore that they can be named by the CJEU including by way of the publication of

materials or of the judgment of that court; and

(iv) the substantive determination of the proceedings be adjourned pending the

judgment of the CJEU, without prejudice to the determination of any appropriate

procedural or interlocutory issues in the meantime.