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Potential Disruption to Developers as Questions on Building Heights Guidelines and SEA Directive Referred to Europe

02 June 2021 | 7 min read ⧖

A strategic environmental assessment (SEA) is an environmental assessment required under the SEA Directive for “plans and programmes” which are likely to have significant effects on the environment. An SEA often relates to large scale government plans such as roads, water infrastructure and development plans. However, the SEA Directive does not have a list of “plans or programmes” similar to the Environmental Impact Assessment (EIA) Directive. As a result of this, the definition of what constitutes “plans or programmes” has been litigated on numerous occasions. In turn, this has led to definitions ultimately being set down by the Court of Justice of the European Union (CJEU). 

The 2018 Urban Development and Building Heights Guidelines for Planning Authorities were issued under Section 28 of the Planning and Development Act 2000, as amended (the PDA). The 2018 Guidelines allow An Bord Pleanála (the Board) to grant planning permissions that materially contravene a development plan if it adheres to certain criteria on the basis of binding specific planning policy requirements (SPPRs). This has been utilised by developers in recent years to exceed building heights that have been set in development plans. This provision has turned out to be quite controversial and has led to numerous judicial review challenges in the Irish Courts.

The definition of “plans or programmes” and the scope of the 2018 Guidelines appear to be issues that are continuingly appearing before the Courts. Mr Justice Humphreys of the High Court has consequently taken the view that the legal implications of these legal definitions and government policies require further clarification from the CJEU. A decision was handed down by Judge Humphreys on 31 May 2021 in Kerins v An Bord Pleanála & Ors[1] where three questions relating to these issues were referred to the CJEU for determination.

The facts

A judicial review challenge was lodged relating to a planning decision to construct 416 dwellings in five blocks ranging from 2 storeys to 16 storeys as well as associated amenities situated in Dublin’s south inner city. The Board granted planning permission in September 2020 under the Planning and Development (Housing) and Residential Tenancies Act 2016, which is the strategic housing development legislation in Ireland.

The applicants contended that because the development, which was based on a masterplan, deviated from the development plan using the SPPR contained in the 2018 Guidelines, it had not been subject to an SEA. The applicants sought to have the planning permission quashed. They also sought a declaration that Section 28 of the PDA was invalid as contrary to EU law, specifically relating to the EIA Directive, on the grounds that mandatory guidelines under that section interfere with the process of the EIA.

Reliance on a masterplan not subjected to SEA

A masterplan for the area which was the subject of the initial planning application was prepared jointly by the notice party’s advisers and Dublin City Council in January 2020. That was screened for an appropriate assessment required under the Birds and Habitats Directive but it was not subjected to an SEA. The area was also subject to the objectives of the Dublin Development Plan 2016-2022. It was also designated in the Development Plan as a Strategic Development and Regeneration Area (SDRA).

The use of masterplans to develop the area were expressly envisaged in the Dublin Development Plan 2016-2022. The Plan stated that “Dublin City Council will prepare area-specific guidance for the SDRAs and key district centres, using the appropriate mechanisms of local area plans and schematic masterplans and local environmental improvement plans”. The development plan was subject to an SEA, but the masterplan was not. The making of a development plan is a statutory obligation under the PDA.

The Court found that the Board had properly applied SPPR 3 of the 2018 Guidelines, which permitted the contravention of the development plan. However, it stated that implementing the masterplan would amount to a deviation from the development plan as it expressly envisages a different set of developments, particularly in terms of height, and this had not undergone an SEA. In opposition to the argument that SEA should apply, it was submitted by the Respondent that the masterplan was not adopted by a local authority, and is not in any event binding.

The Court stated these issues were not clear on the basis of CJEU case law and formed the view that there were two referable questions of EU law:

  1. Does the concept of a “plan or programme” within the meaning of the SEA Directive include a plan or programme that is jointly prepared and/or adopted by an authority at local level and a private sector developer as owner of adjacent lands to those owned by a local authority?
  2. Does the concept of a “plan or programme” within the meaning of the SEA Directive include a plan or programme that is not in itself binding but which is expressly envisaged in a statutory development plan which is binding, or which proposes or envisages in effect a modification of a plan that was itself subject to SEA?

Alleged breach of the EIA Directive arising from the 2018 Guidelines issued under Section 28 of the PDA

Section 3.1 of the 2018 Guidelines states that “it is Government policy that building heights must be generally increased in appropriate urban locations. There is therefore a presumption in favour of buildings of increased height in our town/city cores and in other urban locations with good public transport accessibility”.

The applicants objected to Section 28(1C) of the PDA, which provides that where the guidelines contain SPPRs, the Board shall comply with those requirements. The applicants argued that the outcome of a planning application relying on a SPPR was therefore “pre-determined”. The Board argued that the guidelines are “permissive”, in that they do not mandate a decision, but rather allow the grant of permission. The Court stated that it would appear that the SPPRs contained in the 2018 Guidelines are based on government housing policies and not on purely environmental considerations.

The Court was of the view that the core issue was whether the EIA Directive precludes regard being had to national mandatory policies particularly such as those stated at 3.1 of the 2018 Guidelines.

On that basis, the Court referred a further question to the CJEU:

  1. Whether the EIA Directive has the effect of precluding regard being had by the competent authority in the process of environmental impact assessment to mandatory government policies, in particular those which are not based exclusively on environmental criteria, being policies that define in certain circumstances situations where a grant of permission is not to be ruled out?

Conclusion

A declaration from the CJEU that states the EIA Directive precludes regard being had to national mandatory policies could mean that any development that has undergone an EIA may not be able to rely on SPPRs in its planning application. As a result, to do so could be deemed a breach of EU law. The implications of the CJEU decision could be far reaching.  It could have the potential to create significant roadblocks for SHD planning applications or any planning application which rely on SPPRs, or possibly those which rely on Section 28 Guidelines more generally.

If the CJEU finds that there has been a breach of EU law, SPPRs could be declared invalid and the national authorities must take action to comply with the Court judgment. This could result in the 2018 Guidelines being revoked so that SPPRs would not have a binding effect. The CJEU may however take the view of the Respondents that the SPPRs are “permissive”, in that they do not mandate a decision, but rather allow the grant of permission and are therefore not mandatory national policies. The CJEU may also apply a pragmatic approach insofar as the national mandatory policies are valid provided that the development, which has applied the SPPRs, has been environmentally assessed, and complies with the provisions of the EIA Directive.

Developers should also be wary of developments that have sought planning permission on the basis of a masterplan which has been incorporated into a development plan and has not undergone a SEA. An extension of the definition of “plans and programmes” to include such a masterplan could result in the planning decision being quashed so that the masterplan can undergo a SEA to comply with the SEA Directive. Traditionally, the CJEU has offered a wide definition of “plans and programmes” to give effect to the spirit of the SEA Directive to provide for a high level of protection of the environment.

As the law currently stands, developers relying on SPPRs or a masterplan that has been incorporated into the development plan which has not been subjected to a SEA, should proceed with extreme caution until the CJEU determines the issues.

For more information on the likely impact of an unfavourable decision by the CJEU on your existing or contemplated developments, contact a member of our Planning & Environment team.


The content of this article is provided for information purposes only and does not constitute legal or other advice.


[1] [2021] IEHC 369

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