IEHC 66 — IEHC 66 — High Court

[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 2

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 3

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.’ 4

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 5

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’ 6

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.