Judgment of the Court of Justice of the European Union clarifying the interpretation of the SEA Directive

On 9 March 2023, the Court of Justice of the European Union (CJEU), delivered judgment in NJ and OZ v An Bord Pleanála and Others C-9/22 following a reference made by the High Court concerning the interpretation of certain articles of Directive 2001/42/EC (the SEA Directive) and Directive 2011/92, as amended (the EIA Directive).

Background and procedural history

At issue in the proceedings is a planning permission granted on 14 September 2020 by An Bord Pleanála (ABP) for a residential development, comprising 416 dwellings across five blocks ranging from 2 to 16 storeys, as well as tenant amenities, communal open space, childcare facilities, commercial floor space and associated works at the former Bailey Gibson Site in Dublin 8.  

The development forms part of an overall site marked for residential development for which the developer and Dublin City Council jointly prepared a masterplan. This masterplan was screened for Appropriate Assessment (AA), but was not subject to Strategic Environmental Assessment (SEA).

In the High Court, the applicants sought, amongst others things, the following:

  1. An order quashing the decision of ABP; and
  2. A declaration that section 28 of the Planning and Development Act 2000 (which allows the Minister to issue guidelines to planning authorities) is invalid as contrary to EU law, on the grounds that mandatory guidelines under section 28 interfere with the process of AA or Environmental Impact Assessment (EIA). The guidelines at issue are the Urban Development and Building Heights Guidelines for Planning Authorities.  

On 31 May 2021, Mr Justice Humphreys gave judgment in Kerins & Anor v An Bord Pleanala & Ors [2021] IEHC 369. While he concluded that the applicants had failed on its domestic law grounds, he considered that issues in the case gave rise to referable questions of EU law that are outlined below.  

Questions referred to the CJEU

In summary, the CJEU considered the following four questions raised by the High Court:

  1. Does Article 2(a) of the SEA Directive have the effect that the concept of “plans and programmes … as well as any modifications to them … which are subject to preparation and/or adoption by an authority at national, regional or local level …” 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 Article 2(a) of the SEA Directive have the effect that the concept of “plans and programmes … as well as any modifications to them … which are required by legislative, regulatory or administrative provisions” includes a plan or programme that is expressly envisaged by a local authority’s statutory development plan (that development plan having been made under a legislative provision) either in general or where the development plan states that the local authority “will prepare area-specific guidance for the strategic development and regeneration areas … using the appropriate mechanisms of local area plans … schematic masterplans and local environmental improvement plans”?
  3. Does Article 3(2)(a) of the SEA Directive have the effect that the concept of “plans and programmes … 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 …” includes 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 strategic environmental assessment?
  4. Does Article 2(1) of the EIA Directive have 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?

CJEU Decision

The CJEU examined the questions referred separately as follows:

  • CJEU Decision on Questions 1, 2 and 3

The CJEU summarised the first 3 issues as, in essence, asking:

"whether Article 2(a) and Article 3(2)(a) of Directive 2001/42 must be interpreted as meaning that a plan comes within the scope of Directive 2001/42 where, first, it has been prepared by an authority at local level in collaboration with a developer of the project concerned by that plan and has been adopted by that authority, second, it has been adopted on the basis of a provision in another plan or programme and, third, it envisages developments distinct from those envisaged in another plan or programme."

The CJEU concluded that the answer to the first, second and third questions are that Article 2(a) and Article 3(2) and (3) of the SEA Directive must be interpreted as meaning that a plan comes within its scope where:

  1. It has been prepared by an authority at local level, in collaboration with a developer of the project concerned, and has been adopted by that authority;
  2. It has been adopted on the basis of a provision in another plan or programme; and
  3. It envisages developments distinct from those envisaged in another plan or programme, provided, however, that it is at least binding on the authorities with competence to grant development consent.
  • CJEU Decision on Question 4

Similarly, the CJEU summarised question 4 as whether the EIA Directive:

"must be interpreted as precluding national legislation which requires the competent authorities of a Member State, when deciding whether or not to grant development consent for a project, to act in accordance with guidelines which require building heights to be increased, if possible, and which have been subject to an environmental assessment under Directive 2001/42."

The CJEU concluded that the EIA Directive must be interpreted as not precluding national legislation which requires the competent authorities of a Member State, when deciding whether or not to grant development consent for a project, to act in accordance with such guidelines in circumstances where those guidelines have already undergone SEA.

Conclusion

The CJEU decision is helpful in that it clarifies:

  1. The circumstances in which a plan comes within the scope of the SEA Directive and therefore must undergo SEA; and
  2. That the EIA Directive does not preclude national legislation that requires competent authorities, when deciding whether or not to grant development consent for a project, to act in accordance with guidelines (for example, which require the height of buildings to be increased, where possible) which have been subject to SEA i.e. section 28 of the Planning and Development Act 2000 is not contrary to EU law.

For more information on this topic, please contact Jason Milne, Partner, Síofra Heffernan, Solicitor or any other member of ALG's Environmental & Planning team.

Date published: 22 March 2023