Potential disruption for developers as questions on building height guidelines and SEA sent back to Europe
A Strategic Environmental Assessment (SEA) is an environmental assessment required under the SEA Directive for “plans and programsWhich 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 contain a list of “plans or programs»Similar to the Environmental Impact Assessment (EIA) Directive. Accordingly, the definition of what constitutes “plans or programsHas been argued many times. In turn, this led to definitions eventually established by the Court of Justice of the European Union (CJEU).
The 2018 Urban Development and Building Height Guidelines for Planning Authorities were issued under Section 28 of the Planning and Development Act 2000, as amended (PDA) . The 2018 guidelines allow An Bord Pleanála (the Council) to grant planning permissions that significantly contravene a development plan if it adheres to certain criteria on the basis of specific, binding building requirements. town planning policy (SPPR). This has been used by developers in recent years to exceed building heights that have been defined in development plans. This provision has proved to be quite controversial and has given rise to numerous judicial review appeals in Irish courts.
The definition of “plans or programsAnd the scope of the 2018 Guidelines seem to be issues that come up over and over again in the courts. High Court Judge Humphreys therefore considered that the legal implications of these legal definitions and government policies require further clarification from the CJEU. A decision was rendered by Justice Humphreys on May 31, 2021 in Kerins vs. An Bord Pleanála & Ors where three issues relating to these issues have been referred to the CJEU for decision.
An appeal for judicial review has been filed against a planning decision to build 416 housing units in five blocks ranging from 2 to 16 floors and associated facilities located in the south city center of Dublin. The Board of Directors granted a building permit in September 2020 under the Planning and Development (Housing) and Residential Tenancies Act 2016, which is the strategic legislation for housing development in Ireland.
The applicants argued that because the development, which was based on a master plan, deviated from the development plan using the SPPR contained in the 2018 guidelines, it had not been subject to a EES. The applicants requested the cancellation of the building permit. They also requested a declaration that Article 28 of the PDA was invalid because it was contrary to EU law, in particular with regard to the EIA Directive, on the grounds that mandatory directives under that article interfere with the EIA process.
Use of a master plan not subject to SEA
A master plan for the area that was the subject of the original planning application was prepared jointly by the Advisors of the notified party and Dublin City Council in January 2020. It has been reviewed for proper assessment required under of the Birds and Habitats Directive, but it has not been subject to an MER. 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 Zone (SDRA).
The use of master plans to develop the area was expressly envisaged in the Dublin Development Plan 2016-2022. The Plan stated that “Dublin City Council will prepare area-specific guidance for ARDS and key district centers, using the appropriate mechanisms of local plans and schematic master plans and local environmental improvement plans”. The development plan was the subject of an SEA, but not the masterplan. Developing a business plan is a legal obligation under the PDA.
The Court concluded that the Office had correctly applied SPPR 3 of the 2018 Guidelines, which made it possible to contravene the management plan. However, she indicated that the implementation of the masterplan would amount to a derogation from the development plan because it expressly envisages a different set of installations, particularly in terms of height, and which was not the subject of an SEA. Against the argument that SEA should apply, it was argued by the Respondent that the Master Plan was not adopted by a local authority and is in no way binding.
The Court said these issues were unclear based on CJEU case law and found that there were two referral issues of EU law:
- Does the concept of a “plan or program”Within the meaning of the SEA Directive includes a plan or program which is jointly developed and / or adopted by a local authority and a private sector developer as the owner of land adjacent to those belonging to a local authority?
- Does the concept of a “plan or program”Within the meaning of the SEA Directive include a plan or program which is not in itself binding but which is expressly provided for in a statutory development plan which is binding, or which proposes or in fact envisages a modification of a plan which was itself subject to MER?
Alleged violation of the EIA Directive stemming 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 should generally be increased in appropriate urban locations. There is therefore a presumption in favor of taller buildings in our city centers and other urban places with good accessibility to public transport.”.
The applicants objected to section 28 (1C) of the PDA, which provides that where the guidelines contain SPPRs, the Commission must comply with those requirements. The applicants argued that the result of an accommodation application based on a SPPR was therefore “predetermined”. The Commission argued that the guidelines are ‘permissive”, In that they do not impose a decision, but rather authorize the granting of an authorization. The court said it would appear that the SPPRs contained in the 2018 guidelines are based on government housing policies and not purely environmental considerations.
The Court considered that the central question was whether the EIA Directive excluded the taking into account of compulsory national policies, in particular such as those set out in point 3.1 of the 2018 guidelines.
On this basis, the Court put another question to the CJEU:
- Does the EIA Directive have the effect of preventing the competent authority, in the process of environmental impact assessment, from taking into account mandatory government policies, in particular those which are not based exclusively on environmental criteria, that is to say policies which define in certain circumstances situations where the granting of an authorization is not to be excluded?
A statement from the CJEU that the EIA Directive prohibits consideration of mandatory national policies could mean that any development that has been the subject of an EIA may not be able to rely on SPPRs in its planning application. As a result, it could be considered a violation of EU law. The implications of the CJEU ruling could be considerable. This could potentially create significant obstacles for SHD planning applications or any planning applications that rely on SPPRs, or possibly those that rely on the Article 28 guidelines more generally.
If the CJEU finds that there has been a violation of EU law, the SPPRs can be declared invalid and national authorities must take action to comply with the court ruling. This could lead to the revocation of the 2018 guidelines so that the SPPRs do not have binding effect. The CJEU may however consider the Defendants that the SPPRs are “permissive”, In that they do not impose a decision, but rather authorize the granting of an authorization and are therefore not compulsory national policies. The CJEU can also apply a pragmatic approach to the extent that mandatory national policies are valid provided that the development, which applied the SPPR, has been environmentally assessed and complies with the provisions of the EIA Directive.
Developers should also be wary of developments that have applied for a building permit based on a master plan that has been incorporated into a development plan and has not been the subject of an SEA. An extension of the definition of “plans and programs“The inclusion of such a master plan could lead to the cancellation of the planning decision so that the master plan can be subject to an SEA to comply with the SEA directive. Traditionally, the CJEU has proposed a broad definition of “plans and programs”To give effect to the spirit of the SEA Directive to ensure a high level of environmental protection.
In the current state of the law, developers relying on SPPRs or on a master plan integrated into the development plan that has not been the subject of an SEA, must proceed with extreme caution until what the CJEU resolves the problems.