CELEX: 62022CJ0009
Reference for a preliminary ruling
Environment
Directive 2001/42/EC
Assessment of the effects of certain plans and programmes on the environment
Article 2(a)
Concept of ‘plans and programmes’
Article 3(2)(a)
Environmental assessment
Non-statutory act prepared by a municipal council and a developer
Directive 2011/92/EU
Assessment of the effects of certain public and private projects on the environment
Article 3(1)
Obligation to identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect effects of a project
Binding ministerial guidelines on building height

This request for a preliminary ruling concerns the interpretation of Article 2(a) and Article 3(2)(a) of 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 (
OJ 2001 L 197, p. 30
) and of Article 2(1) of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (
OJ 2012 L 26, p. 1
), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (
OJ 2014 L 124, p. 1
) (‘Directive 2011/92’).
The request has been made in proceedings between NJ and OZ, on the one hand, and An Bord Pleanála (the Planning Board, Ireland; ‘the Board’), Ireland, and the Attorney General (Ireland), on the other, concerning a development project for residential housing.
Legal context
European Union law
Directive 2001/42
As set out in Article 1 of Directive 2001/42, entitled ‘Objectives’:
‘The objective of this Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with this Directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.’
Article 2 of that directive, entitled ‘Definitions’, is worded as follows:
‘For the purposes of this Directive:
(a)
“plans and programmes” shall mean plans and programmes, including those co-financed by the European Community, as well as any modifications to them:
–
which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and
–
which are required by legislative, regulatory or administrative provisions;
…’
Article 3 of that directive, entitled ‘Scope’, provides:
‘1.   An environmental assessment, in accordance with Articles 4 to 9, shall be carried out for plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant environmental effects.
2.   Subject to paragraph 3, an environmental assessment shall be carried out for all plans and programmes,
(a)
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 [Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (
OJ 1985 L 175, p. 40
)], …
…
3.   Plans and programmes referred to in paragraph 2 which determine the use of small areas at local level and minor modifications to plans and programmes referred to in paragraph 2 shall require an environmental assessment only where the Member States determine that they are likely to have significant environmental effects.
…’
Article 8 of that directive, entitled ‘Decision making’, provides:
‘The environmental report prepared pursuant to Article 5, the opinions expressed pursuant to Article 6 and the results of any transboundary consultations entered into pursuant to Article 7 shall be taken into account during the preparation of the plan or programme and before its adoption or submission to the legislative procedure.’
Directive 2011/92
Article 2(1) of Directive 2011/92 provides:
‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’
Article 3(1) of that directive provides:
‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:
(a)
population and human health;
(b)
biodiversity, with particular attention to species and habitats protected under [Council] Directive 92/43/EEC [of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (
OJ 1992 L 206, p. 7
)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (
OJ 2010 L 20, p. 7
)];
(c)
land, soil, water, air and climate;
(d)
material assets, cultural heritage and the landscape;
(e)
the interaction between the factors referred to in points (a) to (d).’
In accordance with the first paragraph of Article 14 thereof, that directive repealed Directive 85/337. Under the second paragraph of that article, ‘references to [Directive 85/337] shall be construed as references to [Directive 2011/92]’.
Irish law
Under Section 15(1) of the Planning and Development Act 2000, in the version applicable to the dispute in the main proceedings (‘the 2000 Act’):
‘It shall be the duty of a planning authority to take such steps within its powers as may be necessary for securing the objectives of the development plan.’
Section 28 of the 2000 Act, entitled ‘Ministerial guidelines’, provides:
‘(1)   The Minister may, at any time, issue guidelines to planning authorities regarding any of their functions under this Act and planning authorities shall have regard to those guidelines in the performance of their functions.
…
(1C)   Guidelines to which subsection (1) relates may contain specific planning policy requirements that, notwithstanding subsection (1), are required to be applied by planning authorities and the Board in the performance of their functions.
(2)   Where applicable, the Board shall have regard to any guidelines issued to planning authorities under subsection (1) in the performance of its functions.
…’
Part X of the 2000 Act, entitled ‘Environmental Impact Assessment’, is intended to transpose Directive 2011/92 into Irish law and therefore lays down rules concerning the carrying out of an environmental impact assessment.
The dispute in the main proceedings and the questions referred for a preliminary ruling
On 25 May 2020, DBTR-SCR1 Fund, a Sub Fund of TWTC Multi-Family ICAV (‘DBTR’), applied for permission for a residential housing construction project comprising 416 dwellings across five blocks ranging from 2 to 16 storeys in height, tenant amenities, communal open space, childcare facilities, commercial floor space and ancillary development at the site of an old disused factory, situated in the south of the city centre of Dublin (Ireland).
On 20 August 2020, the Board’s senior planning inspector recommended that the application be refused.
By decision of 14 September 2020, the Board nevertheless granted the permission applied for, subject to a list of 24 conditions.
Before the referring court, the High Court (Ireland), the applicants in the main proceedings seek to have that decision annulled. They also seek to obtain a declaration that Section 28 of the 2000 Act is invalid on the ground that it is contrary to EU law.
In that regard, the applicants in the main proceedings claim, first, that the decision of 14 September 2020 infringes Directive 2001/42 inasmuch as it is based on the masterplan of Strategic Development and Regeneration Area (SDRA) 12 – St. Teresa’s Gardens and Environs (‘the masterplan’). That masterplan was not subjected to an environmental assessment, despite the requirements resulting from that directive.
It is apparent from the order for reference that the masterplan was prepared jointly by DBTR’s advisers and Dublin City Council (Ireland) and that it was adopted by the latter.
Furthermore, the preparation of a masterplan is expressly envisaged by the Dublin City Development Plan 2016-2022, which provides, in Section 2.2.8.1 thereof, that ‘Dublin City Council will prepare area-specific guidance for the strategic development and regeneration areas (SDRAs) and key district centres, using … schematic masterplans …’.
In addition, the referring court notes that, although the masterplan is not a binding legal instrument, it is nevertheless expressly envisaged by a binding instrument, namely the Dublin City Development Plan 2016-2022, the drafting of which is provided for by the 2000 Act. Moreover, that development plan was itself the subject of an environmental assessment.
Lastly, it is apparent from the order for reference that the masterplan envisages developments being allowed that would not be consistent with that development plan, with the result that it would be tantamount to derogating from the latter, in particular as regards the height of the buildings.
The applicants claim, second, that the statutory obligation laid down in Section 28(1C) of the 2000 Act, according to which the Board is required to comply with ministerial guidelines, in this case the Urban Development and Building Heights Guidelines for Planning Authorities (December 2018) (‘the 2018 Guidelines’), and in particular their Specific Planning Policy Requirement 3 (‘specific requirement 3’), infringes Directive 2011/92.
It is apparent from the documents before the Court of Justice that the 2018 Guidelines were adopted with the objective of moving away from high-energy-consumption development models and of creating more mixed-use, dynamic and sustainable cities. To that end, it is stated, in paragraph 3.1 of those guidelines, that ‘in relation to the assessment of individual planning applications and appeals, 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 referring court thus points out that those guidelines, which were the subject of an environmental assessment under Directive 2001/42, have their origin in policies motivated primarily, albeit not exclusively, by non-environmental considerations.
In those circumstances, the High Court (Ireland) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Does [Article] 2(a) of Directive 2001/42/EC 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 Directive 2001/42/EC 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 Directive 2001/42/EC 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 Directive 2011/92] [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[?]’
Consideration of the questions referred
The first, second and third questions
By its first three questions, which it is appropriate to examine together, the referring court asks, in essence, 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.
As regards, in the first place, Article 2(a) of Directive 2001/42, it should be noted that that provision defines ‘plans and programmes’, within the meaning of that directive, as being those which satisfy the two cumulative conditions set out in that provision, namely that they are subject to preparation and/or adoption by an authority at national, regional or local level or are prepared by an authority for adoption, through a legislative procedure by Parliament or Government (the first condition) and that they are required by legislative, regulatory or administrative provisions (the second condition) (judgment of 22 February 2022, Bund Naturschutz in Bayern,
C‑300/20
,
EU:C:2022:102
, paragraph
and the case-law cited).
Since the masterplan was adopted by Dublin City Council, which is a local authority, that first condition must be regarded as satisfied in the present case.
In that regard, the fact that that plan was prepared jointly by DBTR’s advisers and Dublin City Council is irrelevant, since, in accordance with the wording of that first condition, the plan must be ‘subject to preparation and/or adoption by an authority at national, regional or local level’.
As regards the second condition set out in paragraph 27 above, it is apparent from the settled case-law of the Court that plans and programmes the adoption of which is regulated by national legislative or regulatory provisions, which determine the competent authorities for adopting them and the procedure for preparing them, must be regarded as ‘required’ within the meaning and for the application of Directive 2001/42. Thus, in view of the intended purpose of Article 2(a) of Directive 2001/42, which is to provide for a high level of protection of the environment, and in order to preserve the effectiveness of that provision, a plan or programme must be regarded as ‘required’ where there exists, in national law, a particular legal basis authorising the competent authorities to adopt that plan or programme, even if such adoption is not mandatory (judgment of 22 February 2022, Bund Naturschutz in Bayern,
C‑300/20
,
EU:C:2022:102
, paragraph
and the case-law cited).
Since Article 2(a) of Directive 2001/42 refers not only to plans and programmes required or regulated by legislative or regulatory provisions, but also to those which are required or regulated by administrative provisions, that provision must be interpreted as referring, in principle, also to plans adopted on a legal basis provided for in another plan, such as, in the present case, the Dublin City Development Plan 2016-2022.
As the European Commission submits, in essence, if plans and programmes adopted by authorities at national, regional or local level, such as that development plan, were as a matter of principle excluded from the concept of ‘legislative, regulatory or administrative provisions’ within the meaning of Article 2(a) of Directive 2001/42, Member States could easily circumvent the obligation to carry out an environmental assessment by providing in a plan or programme, for example, that certain elements of the framework which that plan or programme is intended to define will be determined in another document.
Furthermore, as the applicants in the main proceedings point out, in accordance with Section 15(1) of the 2000 Act, it is the duty of a planning authority to take such steps within its powers as may be necessary for securing the objectives of the development plan.
In the light of the considerations set out in paragraphs 30 to 32 above, a plan adopted on a legal basis provided for in a plan such as the Dublin City Development Plan 2016-2022 could constitute a plan the adoption of which is regulated by legislative, regulatory or administrative provisions, within the meaning of Article 2(a) of Directive 2001/42, or even, in the light of Article 15(1) of the 2000 Act, a plan required by such provisions.
However, it is for the referring court to determine whether the masterplan may be regarded as having been adopted on the basis of the provision of the Dublin City Development Plan 2016-2022 cited in paragraph 19 above.
As regards, in the second place, Article 3(2)(a) of Directive 2001/42, it should be recalled that, under that provision, an environmental assessment must be carried out for all plans and programmes which satisfy two cumulative conditions, namely that they are prepared for the sectors referred to in that provision (the first condition) and they set the framework for future development consent of projects listed in Annexes I and II to Directive 2011/92 (the second condition).
Since the masterplan concerns town planning and/or land use and those sectors are referred to in Article 3(2)(a) of Directive 2001/42, the first condition laid down in that provision appears to be satisfied.
As regards the second condition set out in that provision, it should be recalled that the concept of ‘plans and programmes’ relates to any measure which establishes, by defining rules and procedures for scrutiny applicable to the sector concerned, a significant body of criteria and detailed rules for the grant and implementation of one or more projects likely to have significant effects on the environment (judgment of 22 February 2022, Bund Naturschutz in Bayern,
C‑300/20
,
EU:C:2022:102
, paragraph
and the case-law cited).
Furthermore, the Court has repeatedly held that the concept of ‘plans and programmes’ includes not only their preparation, but also their modification, this being intended to ensure that provisions which are likely to have significant environmental effects are subject to an environmental assessment (judgment of 12 June 2019, CFE,
C‑43/18
,
EU:C:2019:483
, paragraph
and the case-law cited).
In accordance with Article 3(3) of Directive 2001/42, that concept also includes, in principle, minor modifications to plans and programmes referred to in Article 3(2). As regards, inter alia, such minor modifications, the Member States are required to determine whether they are likely to have significant environmental effects.
Accordingly, that concept must necessarily also include acts which, without amending a plan or programme, nevertheless allow derogation from certain elements of the framework for future development consent of projects listed in Annexes I and II to Directive 2011/92, as defined by that plan or programme.
As set out in Article 1 of Directive 2001/42, the objective of that directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with that directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.
That objective would be undermined if it were possible to derogate from the framework defined by a plan or programme which has been subjected to an environmental assessment, within the meaning of Directive 2001/42, and was prepared taking into account, in accordance with Article 8 of that directive, the conclusions drawn from that assessment, without such a derogation being subject, at the very least, to the obligation, arising from Article 3(3) of that directive, to establish whether that derogation is likely to have significant effects on the environment.
In the present case, it is apparent from the request for a preliminary ruling that, before the adoption of the masterplan, the future development of the area at issue in the main proceedings had been the subject matter of the Dublin City Development Plan 2016-2022 as well as a development framework plan adopted by Dublin City Council in July 2017, the objective of which was, in its own words, to ‘translate the requirements and principles [of the Dublin 2016-2022 Development Plan] on the Planning and Development of [the area at issue in the main proceedings]’.
In that regard, the referring court notes, first, that, although that framework plan contained a proposal for a park measuring 0.2 hectares within that area, the masterplan provides for the removal of that public space.
Second, the referring court notes that, although the masterplan does not formally modify the Dublin City Development Plan 2016-2022, it provides for the authorisation of developments which do not comply with that development plan and would in fact amount to a derogation from that plan inasmuch as it expressly envisages a different set of developments, particularly in terms of the heights of the buildings.
Such factors may be analysed as meaning that the masterplan constitutes a plan or programme that comes within the scope of Directive 2001/42, unless it is to be considered, as the case may be, that those factors already derive from other acts which have been the subject of an environmental assessment within the meaning of that directive, such as the 2018 Guidelines.
However, the referring court also observes that the master plan is not ‘in itself binding’.
It should be borne in mind that, according to the case-law, provisions of purely indicative value do not satisfy the second condition set out in Article 3(2)(a) of Directive 2001/42. In order to satisfy that condition, they must at least be binding on the authorities with competence to grant development consent (see, to that effect, judgment of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele),
C‑24/19
,
EU:C:2020:503
, paragraphs
and
).
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.
It follows that it is only if, under Irish law, the masterplan were binding on the authority competent to grant development consent for the project at issue in the main proceedings, namely, in the present case, the Board, which it is for the referring court to establish, that it would be necessary to consider, subject to the proviso mentioned in paragraph 47 above, that that plan comes within the scope of Directive 2001/42 and that it should therefore have been subject, at the very least, to the obligation imposed on the Member States in Article 3(3) of that directive to determine whether it is likely to have significant effects on the environment.
In the light of the foregoing, the answer to the first, second and third questions is that Article 2(a) and Article 3(2) and (3) of Directive 2001/42 must be interpreted as meaning that a plan comes within the scope of that directive where (i) 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, (ii) it has been adopted on the basis of a provision in another plan or programme and (iii) 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.
The fourth question
By its fourth question, the referring court asks, in essence, whether Directive 2011/92 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.
In the present case, the applicants in the main proceedings criticise the Board for having taken into account, in its decision of 14 September 2020, the 2018 Guidelines.
As is apparent from paragraph 23 above, those guidelines seek, in essence, to increase the height of buildings in certain urban areas. It is in this context that they lay down specific requirement 3, which states:
‘It is a specific planning policy requirement that where;
(A)
1.
an applicant for planning permission sets out how a development proposal complies with the criteria above; and
2.
the assessment of the planning authority concurs, taking account of the wider strategic and national policy parameters set out in the National Planning Framework and these guidelines;
then the planning authority may approve such development, even where specific objectives of the relevant development plan or local area plan may indicate otherwise.
…’
Under Article 28(1C) of the 2000 Act, planning authorities are required, in the performance of their functions, to comply with specific requirements such as that specific requirement 3.
In that regard, it is important to note, first, that, in the legal order of a Member State, there may be rules or requirements to which the design of projects covered by Directive 2011/92 is subject and which are, as the case may be, liable to exclude certain options, even those more favourable, in the circumstances of the particular case, to the environment.
That is why Directive 2001/42 was adopted, as is apparent from the
travaux préparatoires
for that directive. Indeed, it follows from the Proposal for a Council Directive on the assessment of the effects of certain plans and programmes on the environment (COM(96) 511 final) (
OJ 1997 C 129, p. 14
) that the adoption of Directive 2001/42 was motivated, in particular, by the fact that the application of Directive 85/337 had shown that, at the time of the assessment of projects, significant effects on the environment had already been established on the basis of earlier town and country planning measures and that, consequently, although it was possible to study those effects in the context of that assessment, it was no longer possible to take them fully into account when authorising the project at issue, so that it was more prudent to examine such effects at the time of the preparatory measures and to take them into account in that context.
In the present case, as is apparent from paragraph 24 above, the 2018 Guidelines were subject to an environmental assessment within the meaning of Directive 2001/42.
Second, it is apparent from the documents before the Court that, in those guidelines, it is stated that ‘to support proposals …, specific assessments may be required and may include: … relevant environmental assessment requirements, including [a strategic environmental assessment within the meaning of Directive 2001/42], [an environmental impact assessment within the meaning of Directive 2011/92], appropriate assessment [within the meaning of Directive 92/43] and Ecological Impact Assessment, as appropriate’.
Moreover, it does not appear – which is however for the referring court to verify – that the obligation, laid down in Section 28(1C) of the 2000 Act, on planning authorities to comply with specific planning policy requirements, which may be contained in guidelines such as those at issue in the main proceedings, is liable to interfere, in one way or another, with the obligations on the competent Irish authorities under Part X of that act, which is intended to transpose Directive 2011/92 into Irish law, and in particular with the obligation, laid down in Article 3(1) of that directive, to identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on all the factors listed in that provision.
It should be added that, in any event, it appears to follow from the wording of specific requirement 3, inasmuch as it states that the planning authority ‘may’ approve a development, that that requirement is not absolute and therefore does not require the building height to be increased, in relation to any height provided for in the applicable development plan, in every case, that being however a matter for the referring court to verify also.
In the light of the foregoing, the answer to the fourth question is that Directive 2011/92 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 guidelines which require the height of buildings to be increased, where possible, and which have been subject to an environmental assessment under Directive 2001/42.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Seventh Chamber) hereby rules:

1.
Article 2(a) and Article 3(2) and (3) of 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,
must be interpreted as meaning that a plan comes within the scope of that directive where (i) 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, (ii) it has been adopted on the basis of a provision in another plan or programme and (iii) 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.

2.
Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014,
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 guidelines which require the height of buildings to be increased, where possible, and which have been subject to an environmental assessment under Directive 2001/42.

[Signatures]
(
*1
)	Language of the case: English.