Key legal issues regarding a 416 ‘build-to-rent’ housing development project have been referred to the Court of Justice of the European Union.

The referral was made by Judge Richard Humphreys, who heard High Court proceedings brought by two local residents against An Bord Pleanála.

Last year, the planning board approved the development of the Bailey Gibson site off South Circular Road in Dublin 8, a joint venture between US real estate group Hines and Dutch joint venture partners APG Asset Management.

Apartments would make up the vast majority of the proposed development, which would consist of multiple blocks ranging in size from two to 16 storeys.

The commission’s decision went against the recommendation of its senior planning inspector, who felt that the request should be denied.

Local residents Sinead Kerins and Mark Stedman have initiated judicial review proceedings to overturn the council’s decision.

They also request a declaration Article 28 of the Planning and Development Act 2000, which concerns the issuing of ministerial directives to local authorities, is invalid and contrary to EU law, in particular the Directive on habitats and the Environmental Impact Assessment Directive.

They argue that mandatory guidelines interfere with the process of proper assessment or environmental impact assessment.

In a decision referring three legal questions to the European Court, Judge Humphreys noted that a non-statutory development master plan had been prepared by the city council in July 2017 to implement a strategic plan for the development and regeneration of The area.

This included a park project measuring 0.2 hectare inside the Bailey Gibson site.

The judge said a master plan for the region was then prepared jointly by Hines and Dublin City Council in January 2020. It had not undergone a strategic environmental assessment.

The master plan called for the removal of open public space from Bailey Gibson’s site which will be provided elsewhere at a later stage of development with a financial contribution from the developer.

The questions that the judge referred to the European Court concern complex legal questions about what is allowed under the directives.

Reacting to the referral, Mr Stedman said: “As one of the two plaintiffs in the High Court case, I could not be more proud of our community for the way we have come together to defend good planning, essential quality housing and the democratic process protected by the Irish Constitution and maintained by our elected representatives.

The Dublin 8 Residents’ Association welcomed the decision to send the case back to Europe.

In a statement, he said the master plan agreed between the council and the developer was never voted on by local councilors and was allowed to replace the council’s official development plan that had been democratically adopted.

Joe group spokesperson Clarke said the case could have been avoided had there been proper consultation.

“We hope that this problem can be resolved as quickly as possible and that affordable housing, with appropriate density, height and amenities can be provided to the people of Dublin,” said Mr Clarke.