Judgment;Abstract — ECLI:EU:C:2024:825
Date: 2024-10-04
Language of the case: English
Court formation: Second Chamber
Subject matter: Environment
Procedure: Reference for a preliminary ruling
Origin: Ireland

Summary of Ireland’s Position on the NPF 
The Role and Function of the NPF 
3. The NPF is a national strategy that is designed to guide, at a high level, strategic 
planning and development in Ireland to 2040, so that as the population grows, that 
growth is catered for in a manner that is economically, socially and environmentally 
sustainable. The NPF identifies ten National Strategic Outcomes for the management 
of this population growth and corresponding development of the economy, and 
identifies the preferred option in terms of accommodating and balancing population 
growth and development across Ireland. 
4. The NPF is at the apex of the hierarchy of plans that ultimately set regional and 
local planning policy, which subsequently govern applications for development 
consent in Ireland. The NPF is relevant to the content of lower tier plans: Regional 
Spatial and Economic Strategies must be “consistent with” the National Planning 
Framework,4 and development plans adopted by local authorities must be “consistent, 
as far as practicable, with national and regional development objectives set out in the 
National Planning Framework”.5 The adoption of such Regional Spatial and 
 
1  Project Ireland 2040 National Planning Framework (Annex A.4). 
2  Project Ireland 2040 National Development Plan 2018-2027 (Annex A.5). 
3 Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the 
environment (“the SEA Directive”) 
4 Planning and Development Act 2000 (“the PDA 2000”), sections 23(1)(a) and 23(3)(a)(iii) (Annex A.7). 
5 The PDA 2000, section 10(1A) (Annex A.7). 
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Economic Strategies and local development plans is subject to the SEA Directive. An 
Bord Pleanála6 is required to “have regard to” the National Planning Framework 
when carrying out its functions.7  
The Adoption of the NPF 
5. There were no legislative or regulatory provisions regulating the NPF’s adoption. 
In particular, as of 29 May 2018, the PDA 2000 contained no reference to or 
provision for the NPF. As confirmed by the Supreme Court in the main proceedings, 
the adoption of the NPF under challenge “was not regulated by any legislative or 
regulatory provisions and nor is there any legislative regulatory or administrative 
provision which provides who may adopt such a plan and the procedure for 
preparing the measure.” 8 
6. The PDA 2000 did refer to a National Spatial Strategy (“NSS”), regarded as the 
predecessor to the NPF, but did not lay down a statutory basis for the adoption of the 
NSS or its replacement, or prescribe a procedure for its adoption. Rather, it defined 
that document as follows: 
“National Spatial Strategy’ means the ‘National Spatial Strategy: 2002 - 2020’ 
published by the Government on 28 November 2002, or any document published 
by the Government which amends or replaces that Strategy”9 
7. All that can be said therefore, in terms of legislative, regulatory or administrative 
provisions relating to the NPF, is that the definition of the NSS envisaged that any 
document “published by the Government which amends or replaces” the NSS would 
be treated as the NSS for the purposes of the PDA.10 
Application of the SEA Directive to the NPF 
8. An SEA was carried out on the NPF, on a voluntary basis. Ireland’s position is, 
however, that the NPF did not require assessment under the SEA Directive. This is 
 
6 An Bord Pleanála is Ireland’s independent national planning body that decides appeals on planning 
decisions made by local authorities as well as certain direct applications for planning permission. 
7 The PDA 2000, section 143(1)(c). 
8 Judgment of the Supreme Court dated 9 November 2022, Friends of Ireland & Ors [2022] IESC 53 (“the 
Supreme Court Judgment”), §60. 
9 The PDA 2000, section 2 (Annex A. 7). 
10 Around five months after the adoption of the NPF was reaffirmed, on 22 October 2018, Chapter IIA of 
Part II of the PDA 2000 came into effect. By reason of that amendment, the PDA 2000 makes statutory 
provision for the adoption of subsequent NPFs. 
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because it was not a plan or programme within the meaning of Article 2(a) of the 
SEA Directive where, as of the date of its adoption, there were no legislative or 
regulatory provisions regulating its adoption. 
9. It is accepted that if the NPF had met the requirements of Article 2(a) of the SEA 
Directive it would have required SEA, where it was determined to require assessment 
under Article 6 of the Habitats Directive11 and therefore fell within the scope of 
Article 3(2)(b) of the SEA Directive. In these circumstances, compliance with the 
criteria of Article 3(2)(a) does not arise, as sub-paragraphs (a) and (b) are alternative 
criteria, only one of which must be satisfied (in addition to meeting the definition of 
“plan or programme” under Article 2) for a plan to require SEA.12 
10. However, where the NPF was not a plan or programme for the purposes of Article 
2(a) of the SEA Directive, it did not require SEA. 
ii. Summary of Ireland’s Position on the NDP 
The Role and Function of the NDP 
11. The NDP is a capital investment programme, committing a total investment budget 
of circa €116 billion to the implementation of the NPF. It sets out, on an indicative 
basis, the funding to be made available for certain projects considered essential to the 
achievement of the National Strategic Outcomes identified in the NPF. To this 
extent, it is acknowledged that there is a relationship between the NPF and the NDP. 
12. However, in particular where the Court may be more familiar with the term 
‘development plan’ being used in the context of the statutory land-use planning 
documents adopted by planning authorities, it is important to emphasise that it is the 
NPF that is the high level strategic planning and development document for the 
whole of Ireland and that is above regional strategies and planning authority 
development plans in the plan hierarchy. The NDP is a separate, budgetary plan that 
allocates the necessary funding for the implementation of the NPF and, in that sense, 
 
11 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild flora 
and fauna (“the Habitats Directive”). 
12 It is further accepted that any subsequent NPF adopted by Ireland will be a plan or programme within the 
meaning of Article 2(a) of the SEA Directive, where there are now legislative provisions governing the 
adoption of any future NPF and stating who may adopt the NPF and the procedure for preparing the 
NPF. 
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complements the NPF. 
13. The NDP has no binding effect, either in the context of the planning and 
development framework in Ireland or otherwise. It has no impact on the content of 
lower tier plans, or the granting of individual development consents for projects. The 
funding allocated by the NDP for the implementation of the NPF is indicative only. 
Any government may alter budgetary priorities, and adopt a new NDP; this in fact 
occurred prior to the judgment of the Court of Appeal in these proceedings. 
The Adoption of the NDP 
14. No legislative or regulatory provisions regulate the adoption of the NDP. In 
particular, the PDA 2000 does not contain any reference to or provision for the NDP. 
The Application of the SEA Directive to the NDP 
15. In contrast to the NPF, SEA was not carried out on the NDP. Ireland maintains that 
the NDP did not require SEA where: 
i. It is not a plan or programme within the meaning of Article 2(a) of the SEA 
Directive; 
ii. It is indicative only, has no binding effect and does not “set the framework” 
for development consent, and it therefore did not require assessment under 
Article 3(2)(a), 3(3) or 3(4) of the SEA Directive13; 
iii. It was not determined to require assessment under Article 6 or 7 of the Habitats 
Directive, and it therefore did not require assessment under Article 3(2)(b) of 
the SEA Directive; and 
iv. It is a financial or budget plan or programme within the meaning of Article 
3(8) of the SEA Directive and therefore is not subject to the SEA Directive. 
16. Ireland maintains that the NDP falls outside the SEA Directive by reason of Article 
 
13 Section 1.12 of the NDP states that the “National Development Plan, as a budget and financial plan, is 
not part of the physical planning process. Projects funded under the National Development Plan will be 
subject to planning law and may require Strategic Environmental Assessment. These requirements do not 
arise in relation to the National Development Plan itself. Each Government Department is responsible for 
ensuring that its proposed projects meet with appropriate regulatory requirements including those related 
to planning law and environmental impact assessments.” The Government also sets out guidelines for 
each project to be appraised and meet value for money requirements under the Public Spending Code, 
prior to approval (Annex A.5). 
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3(8). However, even if this were not the case, it still fails to meet any of the criteria 
necessary so as to require assessment under the SEA Directive.14 
17. In light of the foregoing, Ireland’s position on each of the questions referred to the 
Court of Justice is detailed below. 
II. QUESTION 1 
18. The first question referred to this Court is as follows: 
Must Article 2(a) of the SEA Directive, read in conjunction with Article 3(2)(a), be 
interpreted to mean that a measure adopted by the executive arm of a Member 
State, other than by reason of a legislative or administrative compulsion, and not 
on the authority of any regulatory, administrative or legislative measure, is 
capable of being a plan or programme to which the Directive applies, if the plan 
or programme so adopted sets a framework for downstream grant or refusal of 
development consent and thus satisfies the test from Article 3(2) of the Directive. 
19. The Court has, in a consistent line of case law since Case C-567/10 Inter-
Environnement Bruxelles ASBL, provided clear guidance on the proper interpretation 
and application of the second limb of the test in Article 2(a) of the SEA Directive. 
20. The Court has adopted a broad and purposive approach to determining whether a 
plan or programme is “required by legislative, regulatory or administrative 
provisions” within the meaning of Article 2(a). Notwithstanding the express language 
of the Directive, the Court has held that a measure must be regarded as so ‘required’ 
where “the legal basis of the power to adopt the measure is found in a particular 
provision”, even if the adoption of that measure is not compulsory.15 
21. Thus a plan or programme ‘“whose adoption 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” of Article 2(a).16 
22. In summary, then, for a plan or programme to meet the requirement of Article 2(a), 
 
14 The same is true of the updated NDP adopted by the Government of Ireland in October 2021, which was 
also not subject to SEA. 
15 Case C-24/19 A and Others (“A and others”), §35 and the cases cited. 
16 Ibid. 
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although it is not necessary that the adoption of the measure be compulsory, the 
following criteria must still be met: 
i. The legal basis of the power to adopt the measure must be found in a 
particular legislative or regulatory provision,17 
ii. The adoption of the measure must be regulated by legislative or regulatory 
provisions,18 and 
iii. Those provisions must determine the competent authorities for adopting the 
measure and the procedure for preparing the measure19 
23. The NPF does not meet those criteria where: 
i. It was not adopted pursuant to any statutory or regulatory procedure or 
provision, and the power to adopt it was not found in any particular 
provision, 
ii. Its adoption was not “provided for” or ‘regulated by” any provision, and 
iii. No provision determined who was competent to make or adopt the NPF, or 
laid down the procedure for its adoption. 
24. In that respect, the Supreme Court has held, as a matter of fact, that the NPF does 
not meet the relevant criteria: 
“60. No statutory or regulatory provision has been identified which required the 
Government to adopt the [NPF]. One might add that its adoption was not 
regulated by any legislative or regulatory provisions and nor is there any 
legislative regulatory or administrative provision which provides who may adopt 
such a plan and the procedure for preparing the measure.”20 
25. This is reinforced at §107 of the Judgement of the Supreme Court and §13 of the 
Order for Reference, which state: “there is really no sense in which it could properly 
be said that the preparation or adoption of the NPF could be said to have been 
“required by legislative, regulatory or administrative provisions”, even allowing for 
the broad interpretation of the word “required” contained in the judgments” of this 
 
17 Ibid. 
18 Ibid. 
19  Ibid. 
20 Judgment of the Supreme Court, §60. 
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Court. The Supreme Court continued: “Specifically, there is here no ‘particular legal 
basis authorising the competent authorities to adopt that plan or programme, even if 
such adoption is not mandatory’: see Bund Naturschutz in Bayern at paragraph 
37.”21 
26. That finding is reflected also in the question referred to the Court, which asks 
whether “a measure adopted by the executive arm of a Member State, other than by 
reason of a legislative or administrative compulsion, and not on the authority of any 
regulatory, administrative or legislative measure” meets the requirements of Article 
2(a) of the SEA Directive. 
27. The basis on which it is contemplated in Question 1 that a plan or programme 
could potentially meet the requirements of Article 2(a) of the SEA Directive, despite 
not fulfilling the criteria previously identified by the Court as being necessary to meet 
those requirements, is that “the plan or programme so adopted sets a framework for 
downstream grant or refusal of development consent and thus satisfies the test from 
Article 3(2) of the Directive.”22 
28. In essence, therefore, Question 1 invites the Court to depart from its previous clear 
line of jurisprudence, and to determine that it is not necessary for a plan or 
programme to meet the requirements of Article 2(a) of the SEA Directive at all so as 
to require SEA, so long as the test in Article 3(2)(a) is met. Ireland’s position is that 
this Court should decline to do so. 
29. The premise of Question 1 impermissibly seeks to conflate the limitation of the 
application of the SEA Directive to those plans and programmes defined in Article 
2(a) of the SEA Directive on the one hand, and the test at Article 3 to determine 
whether such plans or programmes require SEA under Article 3(1) of the SEA 
Directive on the other. 
30. Both the language of the SEA Directive, and the Court’s previous jurisprudence, 
confirm that those tests are separate, and cumulative. If a plan or programme does not 
 
21 Judgment of the Supreme Court, §107. 
22 For the avoidance of doubt, it is emphasised that whether the NPF “sets the framework” for development 
consent has never been a live issue in the main proceedings. The basis on which Ireland accepts that the 
NPF meets the requirements of Article 3 is that it was determined to require assessment under Article 6 of 
the Habitats Directive and thus meets the requirements of Article 3(2)(b) of the SEA Directive. 
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meet the requirements of Article 2(a), it does not matter that it nevertheless meets the 
requirements of Article 3. A plan or programme must meet both of those cumulative 
requirements in order to require assessment under the SEA Directive. 
31. In that respect, “the principle of legal certainty is a fundamental principle of 
Community law which requires, in particular, that rules should be clear and precise, 
so that individuals may be able to ascertain unequivocally what their rights and 
obligations are and may take steps accordingly.”23 
32. This Court has emphasised the importance, in ensuring legal certainty, that any 
interpretation of community law does not depart from the normal meaning of the 
words used: 
“72 Nevertheless, it is important to bear in mind that the need to ensure legal 
certainty means that rules must enable those concerned to know precisely the 
extent of the obligations which they impose on them. The Commission thus cannot 
choose, at the time of the clearance of EAGGF accounts, an interpretation which 
departs from and consequently is not dictated by the normal meaning of the words 
used (see, to that effect, Case C-233/96 Denmark v Commission [1988] ECR I-
5759, paragraph 38).”24 
33. It is further clear that the Court will refuse: “to assume the role of the Community 
legislature and interpret a provision in a manner contrary to its express wording.”25 
34. The Court has already adopted a broad and purposive interpretation of the second 
indent of the definition of “plan or programme” in Article 2(a). For the Court to 
answer ‘yes’ to the question referred, however, would be to go significantly further 
than that purposive interpretation, subsuming the second indent of that definition 
entirely into the separate requirements of Article 3. It would be to disregard the 
language of Article 2(a) of the SEA Directive. It would be to disregard the clear and 
consistent jurisprudence of this Court as to the proper interpretation of that language, 
which is relied on by Member States in determining whether SEA of national plans 
and programmes is required. Such a decision, if made, would offend against the 
 
23 See, e.g., Case C-110/13 Belgium v Commission, §30 and the cases cited. 
24 Case C-245/97 Sale of Milk Promotion (Germany v Commission), §72. 
25 Joined Cases C-310/98 and C-406/98 Hauptzollamt Neubrandenburg, §32. See also, e.g., Case 40/60, 
Scarlata, p.227. 
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principle of legal certainty and the rule of law. 
35. Finally, Ireland’s position is that the adoption of a plan based on the executive 
power of Government acting collectively, derived from the Constitution, is not a 
sufficient “legal basis” to meet the requirements of Article 2(a) of the SEA Directive 
as interpreted by the Court, where the Supreme Court has confirmed that, as a matter 
of national constitutional law, the executive power of the Government cannot be 
regarded as being either legislative, regulatory or administrative in character.26 If the 
contrary position were accepted by the Court, it is not clear that any plan, programme 
or policy document published by Government could ever be excluded from the 
definition of “plan or programme”” in Article 2(a) of the SEA Directive. Again, this 
would render the second indent of the definition of “plan or programme” in Article 
2(a) superfluous, which cannot be correct. 
36. Ireland’s proposed answer to Question 1 is therefore ‘no’. 
III. QUESTION 2 
37. The second question referred to this Court is as follows: 
Must Article 3(1) read in conjunction with Article 3(8) and (9) of the SEA 
Directive be interpreted to mean that a plan or programme which makes specific, 
albeit described as ‘indicative ’, provision for the allocation of funds to build 
certain infrastructure projects with a view to supporting the spatial development 
strategy of another plan, itself forming the basis of downstream spatial 
development strategy, could itself be a plan or programme within the meaning of 
the SEA Directive? 
If the answer to the previous question is yes, does the fact that a plan which has as 
its objective the allocation of resources, mean that it must be treated as a 
budgetary plan within the meaning of Article 3(8)? 
38. To require assessment under the SEA Directive, a measure must meet three 
cumulative requirements: 
i. It must be a “plan or programme” within the meaning of Article 2(a); 
 
26 Order for Reference of the Supreme Court dated 24 November 2022 (“Order for Reference”), §13. 
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ii. It must be a “plan or programme” specified in Article 3(2), (3) or (4); and 
iii. It must not be exempted under Article 3(8) or (9). 
39. The NDP meets none of those requirements. 
40. First, the criteria that must be met for a plan or programme to be considered to be 
“required by legislative, regulatory or administrative provisions” are detailed above. 
The NDP meets none of those criteria and thus is not a plan within the meaning of 
Article 2(a). There are no legislative or regulatory provisions regulating the 
preparation or adoption of the NDP. 
41. Second, the NDP does not fall within any of the categories of “plan or 
programme” identified in Article 3 as requiring assessment. It has not been 
determined to require assessment under Article 6 or 7 of the Habitats Directive so as 
to require assessment under Article 3(2)(b), and it does not “set the framework for 
future development consent of projects” so as to require assessment under Article 
3(2)(a) or 3(4). 
42. The requirement that a measure “set the framework” for future development 
consent has been interpreted by the CJEU as requiring a 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 that are likely to have significant effects on the environment”.27 
43. In that respect, the CJEU has consistently held that “provisions of purely indicative 
value"28 cannot constitute a “framework for future development consent”; rather, 
provisions must be of a “binding nature”29 have “a statutory value,”30 constitute 
“specific, mandatory measures”,31 or be provisions “compliance with which is a 
requirement for issue of the consent”32 to meet that requirement. This was recently 
re-emphasised by this Court: to set the framework for future development consent, 
 
27 A and others, §67. 
28 Ibid, §76; C-321/18 Terre wallone (“Terre wallone”), §§42, 44. 
29 A and Others, §78. See also the opinion of the Advocate General. 
30 Terre wallone, §§42, 44. 
31 C-43/18 CFE, §69; Joined Cases C-105/09 and C-110/09 Terre wallone ASBL and Inter-Environnement 
Wallonie ASBL (“Inter-Environnement Wallonie”), §48. 
32 Inter-Environnement Wallonie, §55. Case C-290/15D'Oultremont, §54, Case C-
300/20BundNaturschutz, §68 
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provisions “must at least be binding on the authorities with competence to grant 
development consent”.33 The Supreme Court itself has found that the NDP “does not 
create a binding or limiting context within which development consent for projects 
must be considered” and that “[i]t could not be said that the NDP sets down rules 
and criteria [...].”34 
44. The NDP could therefore never meet the requirements of Article 3(2)(a) of the 
SEA Directive, where the provisions of the NDP are indicative only35 and have no 
binding legal effect, whether on the authorities with competence to grant 
development consent or at all. 
45. That conclusion is not altered by the dicta in Case-300/20 Bund Naturschutz 
(“Bund Naturschutz”), §65, cited in the Order for Reference. That dicta provides that 
the requirements of Article 3(2)(a) are met where a plan: 
“establishes a significant body of criteria and detailed rules for the grant and 
implementation of one or more of those projects, inter alia with regard to the 
location, nature, size and operating conditions of such projects, or the allocation 
of resources connected with these projects.” 
46. The passage cited is a general statement of principle reflecting the terms of 
paragraph (1) of Annex II of the SEA Directive. Thus Bund Naturschutz does not 
create any new principle relevant to this case. Rather, it reflects what is expressly 
stated in the Directive and is, in any event, uncontroversial; it is self-evident that a 
plan creating binding rules and criteria on the allocation of resources, such as land, to 
projects seeking consent is potentially relevant to the application of the SEA 
Directive. 
47. However, that does not mean that any connection to the allocation of resources is, 
having regard to that dicta, sufficient to meet the relevant criteria. That dicta does not 
alter the requirements with respect to what is considered to “set the framework”; the 
requirement that the provisions be of a “binding nature” and create “a significant 
body of criteria and detailed rules” remains. 
 
33 Case C-9/22 NJ, OZ v An Bord Pleanála, §§49-52. 
34 Order for Reference, §33. 
35 As stated in the NDP (p.12) it “includes indicative Exchequer allocations to support the delivery of the 
ten NSOs identified in the NPF”. 
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48. The Commission Guidance provides some context on when the allocation of 
resources might suffice to ‘set the framework’: 
“3.25. ... A generalised allocation of financial resources would not appear to be 
sufficient to 'set the  framework', for example a broad allocation across an entire 
activity (such as the whole resource allocation for a country's housing 
programme). It would be necessary for the resource allocation to condition in a 
specific, identifiable way how consent was to be granted (e.g. by setting out a 
future course of action (as above) or by limiting the types of solution which might 
be available).” 
49. The NDP does not meet that requirement; where its provisions are indicative only, 
it cannot condition how consent is to be granted, either in a “specific, identifiable 
way” or otherwise. 
50. In that respect, although the decision of the Court in Bund Naturschutz did not 
relate to the allocation of resources, it is nonetheless instructive. The Court accepted 
that the Regulation at issue “may have a certain influence on the location of 
projects”. However, that was not sufficient for it to set down “significant” criteria so 
as to fall within the scope of Article 3, where it did not lay down “sufficiently detailed 
rules regarding the content, preparation and implementation of projects”.36 
51. In the same way, even if the NDP did have “a certain influence” on the allocation 
of resources or the location of projects, that would not be sufficient for it to “set the 
framework for future development consent”. That the NDP addresses the allocation of 
resources could never suffice in that respect, where it does not create any legally 
binding criteria or rules with respect to the allocation of resources, or the location of 
projects, or the granting of consent, still less a “significant body” of binding criteria 
or rules. 
52. Third – and this puts the matter beyond doubt – Article 3(8) expressly excludes 
“financial or budget plans” from the scope of the SEA Directive. The NDP is clearly a 
budgetary plan, as was accepted by the High Court and the Court of Appeal in these 
proceedings. 
 
36 BundNaturschutz, §§69-70. 
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53. For the avoidance of doubt, the passage from Bund Naturschutz cited above does 
not place any limitations on this exemption. Rather, the contrary is true; the 
exemption in Article 3(8) places a limitation on the extent to which plans that 
allocate resources will fall under the scope of the SEA Directive. As recognised by 
the Commission Guidance, paragraph (1) of Annex II must be read in light of the 
Article 3(8) exemption.37 
54. Finally, Ireland wishes to make a number of points in response to the commentary 
in the Order for Reference on the relationship between the NDP and NPF. Ireland 
maintains that no aspect of that relationship could alter the analysis above, regarding 
Question 2. 
55. First, the inter-relationship between the NPF and NDP, far from supporting the 
position of FOIE that the NDP requires SEA, reinforces why SEA is not required in 
respect of the NDP. The plans are complementary because the NPF sets out the 
highlevel strategy, policies and objectives for the development of land in the State, 
whereas the NDP deals with the capital funding for the implementation of the NPF, 
identifying indicative investment priorities. It is not a question of some policies and 
objectives for the development of land being found in the NPF and others in the 
NDP; they are all found in the NPF. 
56. Second, there is no question of those plans being inseparable. It is open to any 
government to alter the budgetary priorities, and to adopt a new NDP, and this in fact 
occurred prior to the judgment of the Court of Appeal in these proceedings. Equally, 
and for the same reason, there is no question that the NDP in any sense forecloses an 
alternative allocation of resources for strategic developments as argued by FOIE, and 
referenced in §28 of the Order for Reference. 
57. Third, and for the avoidance of doubt, there is no question of the NDP constraining 
a local authority with respect to the drafting of its development plan, by reason of 
certain projects being specifically endorsed by the NDP as compatible with the 
objectives of the NPF. A development plan is legally required to align with the 
NPF38; there is no equivalent legal obligation to align with the indicative investment 
 
37 Commission Guidance, §3.25. 
38 See, e.g., Sections 10(1A) and (2A); 12(18); 31(1)(ba)(i); and 31AM(2)(b) of the PDA 2000, as amended 
 
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priorities detailed in the NDP. 
58. In the circumstances, the relationship between the NDP and the NPF does not alter 
the conclusion that, as set out above, in addition to being exempt from the SEA 
Directive by reason of Article 3(8), the NDP also does not meet any of the criteria 
that must be met for a plan or programme to require assessment under Article 3(1) of 
the SEA Directive. 
59. Ireland’s proposed answer to the first part of Question 2 is therefore no. Should the 
CJEU disagree, Ireland’s proposed answer to the second part of Question 2 is yes. 
IV. QUESTION 3 
60. The third question referred to the CJEU is as follows: 
Must Article 5, and Annex 1, of the SEA Directive be interpreted to mean that 
where an environmental assessment is required under Article 3(1), the 
environmental report for which provision is made therein should, once reasonable 
alternatives to a preferred option are identified, carry out an assessment of the 
preferred option and the reasonable alternatives on a comparable basis? 
If the answer to previous question is yes, is the requirement of the Directive met if 
the reasonable alternatives are assessed on a comparable basis prior to the 
selection of the preferred option, and thereafter the draft plan or programme is 
assessed and a more complete SEA assessment then carried out in regard to the 
preferred option only? 
61. Prior to addressing this question, it is useful to briefly summarise the approach that 
was taken to the assessment of alternatives in the SEA of the NPF. The 
Environmental Report39 is the report prepared for the purposes of providing 
information to the public on, and facilitating an assessment of, the likely significant 
environmental effects of the Draft NPF. The assessment of reasonable alternatives is 
addressed in Chapter 7 of that Report. Six options (including the ultimately preferred 
option) are identified as reasonable alternatives. 
62. Section 7.2 of that Report identifies and assesses the likely environmental effects 
 
(AnnexA.7). 
39 SEA Environmental Report (Annex A.2) on the Draft National Planning Framework published for public 
consultation in September 2017 (Annex A.1). See also SEA Statement (Annex A.3). 
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of each option in a narrative section, with an accompanying matrix which sets out the 
nature of the likely effects of that option on each relevant environmental factor. The 
matrix identifies whether the effects are positive (indicated by a ‘+’), negative (‘-‘), a 
mixture of both positive and negative (‘+/-) or neutral/no impact (‘0’). 
63. Following the assessment of the effects of each option individually, Section 7.3 
identifies the ‘preferred alternative’ (Option 2) and the reasons for choosing that 
‘preferred alternative’. Chapter 7 of the Environmental Report must be read in the 
context of the Report as a whole, and in particular, in the context of Chapter 3 - 
which explains the approach to environmental assessment in the Report - and Chapter 
6 - which addresses environmental protection objectives and the SEA Framework. 
64. Following its selection as the preferred alternative, Option 2 was further developed 
into the draft NPF itself — with, for example, the ten National Strategic Outcomes 
being fully developed and fleshed out — and assessed in even greater detail. Chapter 
8 of the Environmental Report sets out that more detailed ‘Assessment of Preferred 
Scenario’. 
65. The environmental assessment of alternatives to the NPF was thus an iterative 
process, with two distinct stages: 
i. a comparable assessment of the six reasonable alternatives, which informed 
and resulted in the preferred alternative being selected to progress to the next 
stage of assessment (“the Chapter 7 assessment”), and 
ii. the development of the preferred alternative into the draft NPF and the detailed 
assessment of that draft NPF (“the Chapter 8 assessment”). 
66. FOIE, in the main proceedings, accept that the six reasonable alternatives were 
subject to equivalent treatment in the Chapter 7 assessment. However, its case is that 
this is not sufficient, and that all six reasonable alternatives should have been 
progressed to full Chapter 8 assessment. It does not admit of the possibility that 
alternatives would be discarded after comparable assessment at an intermediate stage 
of the SEA process. 
67. In reality, the position taken by FOIE would result in an obligation that the likely 
significant environmental effects of reasonable alternatives must be assessed in the 
same way and to the same extent as the likely significant environmental effects of the 
FRIENDS OF THE IRISH ENVIRONMENT 
18 
draft plan. 
68. The consequence of this position — and this lies at the heart of this issue — 
is that all reasonable alternatives, once considered at any stage of the SEA process, 
would be required to be progressed to full assessment. However, to be fully assessed 
to the same extent as the draft plan, an alternative must also be fully developed. So 
the logic of FOIE’s position would require not only six Chapter 8 assessments, but 
also the preparation of six draft NPFs. 
69. It is Ireland’s submission that this proposition by FOIE must be rejected. Rather, 
Ireland’s position on Question 3 can be summarised as follows: 
i. First, there is nothing in the terms of the SEA Directive to suggest a legislative  
intention that alternatives be assessed to the same degree as the preferred 
option; 
ii. Second, however, even if the Court is satisfied that the SEA Directive requires 
an assessment of the preferred option and the reasonable alternatives on a 
comparable basis, there is no support, either in the express terms of the SEA 
Directive or the Commission Guidance referenced in §47 of the Order for 
Reference, for the radical position adopted by FOIE. At the most, the SEA 
Directive could impose an obligation limited to a comparable assessment of 
the reasonable alternatives and the preferred option at the relevant stage of the 
iterative SEA process. 
70. The reasons for that position are as follows. 
71. First, the Directive clearly envisages that only one draft plan or programme would 
be prepared. Article 6, which sets out consultation obligations, provides: 
“1. The draft plan or programme and the environmental report prepared in 
accordance with Article 5 shall be made available to the authorities referred to in 
paragraph 3 of this Article and the public. 
2. The authorities referred to in paragraph 3 and the public referred to in 
paragraph 4 shall be given an early and effective opportunity within appropriate 
time frames to express their opinion on the draft plan or programme and the 
accompanying environmental report before the adoption of the plan or programme 
WRITTEN OBSERVATIONS SUBMITTED BY IRELAND – CASE C-727/22 
19 
or its submission to the legislative procedure.” 
72. Equally, Article 7, which deals with transboundary consultations, clearly envisages 
only one draft plan or programme being forwarded to the other Member State. 
73. This is inconsistent with the interpretation of Article 5(1) proposed by FOIE, 
which on the facts of this case would have required that six draft plans be prepared in 
order that each could be subject to the same level of detailed environmental 
assessment. 
74. Second, throughout the SEA Directive, the obligation to carry out an 
environmental assessment (being a strategic environmental assessment, or “full” 
SEA) arises with respect to the plan or programme only. This is clear from the text of 
Articles 1, 3(1), and 5(1) and Annex 1. 
75. Article 1 of the SEA Directive sets out the Directive’s objectives and makes clear 
that the primary objective is to ensure that an environmental assessment of the plan 
actually being proposed is carried out: 
“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”. 
76. Article 3(1), on the “Scope” of the Directive, is consistent with that position: 
 “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.” 
77. Further, Article 5(1) clearly refers to the significant effects on the environment of 
implementing the plan or programme, and the reasonable alternative, disjunctively: 
“Where an environmental assessment is required under article 3(1), an 
environmental report shall be prepared in which the likely significant effects on the 
environment of implementing the plan or programme, and reasonable alternatives 
taking into account the objectives and the geographical scope of the plan or 
FRIENDS OF THE IRISH ENVIRONMENT 
20 
programme, are identified, described and evaluated. The information to be given 
for this purpose is referred to in Annex I. 
78. In that respect, the comma in the middle of this provision has the effect that the 
environmental report must identify, describe and evaluate “reasonable alternatives 
taking into account the objectives and the geographical scope of the plan or 
programme”, not that it must identify, described and evaluate the “likely significant 
environmental effects of implementing” those reasonable alternatives. (See also the 
French version of Article 5(1)). It is clear that insofar as it concerns the required 
contents of the environmental report, Article 5 does not give the “reasonable 
alternatives” full parity with the plan being proposed and assessed. 
79. Annex 1 of the SEA Directive sets out what is to be contained in the 
Environmental Report. Other than paragraph (h) of Annex 1, it is clear that the 
information to be provided is to be with respect to the plan or programme, not the 
plan or programme and the alternatives. A clear distinction is drawn between the 
treatment of the preferred draft plan or programme, on the one hand, and the 
reasonable alternatives, on the other. 
80. FOIE’s proposed interpretation is therefore contra legem. The Directive cannot be 
interpreted so as to require an identical treatment of the draft plan and the 
alternatives, and thus the preparation of a draft plan and full assessment thereof for 
each alternative. 
81. Third, insofar as it has been suggested by FOIE, as reflected in §§48-50 of the 
Order for Reference, that when the public consultation under Article 6 takes place, 
the level of assessment of the reasonable alternatives must be identical to the level of 
assessment of the draft plan or programme, and a decision must not have been taken 
as to the preferred alternative, that is not consistent with the express terms of Article 
6. 
82. In particular, the following is emphasised: 
i. Article 6(1) and (2) clearly envisage – and require – that “the draft plan or 
programme” would be drafted prior to the public consultation. This in turn 
clearly envisages that the preferred option would be selected prior to the 
public consultation.  
WRITTEN OBSERVATIONS SUBMITTED BY IRELAND – CASE C-727/22 
21 
ii. If FOIE’s approach were to be adopted, and the public consultation were to 
occur after the Chapter 7 assessment but prior to the Chapter 8 assessment, 
and in particular prior to the selection of the preferred alternative, either the 
public consultation could not include the draft plan, or there would have to 
be multiple draft plans. 
iii. It clearly is intended that the public consultation would include the draft 
plan – it would be in breach of Article 6 were the public not to have an 
opportunity to “express their opinion on the draft plan”. It cannot have been 
intended that multiple draft plans would be prepared so as to avoid the 
selection of the preferred alternative prior to public consultation, for the 
reasons already detailed above and expanded on below. 
iv. Finally, Article 6 clearly states the timeframe for the public consultation: it 
is to be “before the adoption of the plan or programme or its submission to 
the legislative procedure.” Article 6 could have – but does not – require that 
the public consultation take place before the selection of the preferred 
alternative. 
83. This does not mean that the selection of the preferred option is foreclosed prior to 
the public consultation. As correctly emphasised by the Court of Appeal: “The 
authority retains the option – and the obligation if necessary – to reconsider or refine 
its preferred options prior to adopting the plan or programme, in light of the results 
of the consultation”.40 
84. Fourth, although the Court has not, to date, determined the issues raised in 
Question 3, the dicta of the Court on the assessment of alternatives that is available 
treats the assessment of the environmental effects of the draft plan or programme, and 
the assessment of reasonable alternatives, disjunctively. In C-474/10 Department of 
the Environment for Northern Ireland v Seaport (NI) Ltd and Others, the CJEU 
stated: 
“35. As stated in recital 15 in the preamble to Directive 2001/42, the requirement, 
under Article 6(3) of that directive, to designate such authorities for the purposes 
 
40 Judgment of the Court of Appeal dated 26 November 2021, Friends of the Irish Environment v 
Government of Ireland & Ors [2021]IECA 317 (“Judgment of the Court of Appeal”), §211 (Annex A.6). 
FRIENDS OF THE IRISH ENVIRONMENT 
22 
of their consultation in connection with the adoption of a plan or programme likely 
to have environmental effects within the meaning of that directive is intended to 
contribute to more transparent decision making and seeks, particularly, to ensure 
that where an authority, which does not necessarily have environmental expertise 
or responsibilities, envisages adopting such a plan or programme, the report on its 
environmental effects, which must accompany that plan or that programme, and 
that plan or programme take due account of such effects and that reasonable 
alternatives to that plan or programme are objectively considered.” 
85. Finally, it is emphasised that the Commission Guidance referenced at §47 of the 
Order for reference cannot support the radical interpretation contended for by FOIE. 
86. In short, the Guidance states that the “essential thing is that the likely significant 
effects of the plan or programme and the alternatives are identified, described and 
evaluated in a comparable way”.41 The Court of Appeal correctly interpreted this as 
supporting the view that the “assessment of the reasonable alternatives to the 
preferred plan or programme must be on a comparable basis to the preferred plan or 
programme at the particular stage in an iterative process before a selection is 
made.”42 
87. In any event, the Guidance is not binding. If – contrary to Ireland’s position set out 
above – it did have the radical effect suggested by FOIE, that would be inconsistent 
with the terms of the Directive itself and should not be followed. 
88. The position endorsed by FOIE is, in the circumstances, contra legem the Directive 
and not supported by the Commission Guidance. 
89. More fundamentally, adopting that position would lead to conclusions which are 
not practicable or feasible and to the imposition of impossibly onerous and 
unworkable obligations on competent authorities. 
90. First, such onerous obligations would more likely hinder rather than assist 
environmental protection. It must be recalled that the purpose of the SEA Directive is 
to ensure that competent authorities turn their minds to a range of alternatives that 
might meet the policy requirements of a plan, at an early stage and before strategic 
 
41 Commission Guidance, §5.12. 
42 Judgment of the Court of Appeal, §167, emphasis added (Annex A.6). 
WRITTEN OBSERVATIONS SUBMITTED BY IRELAND – CASE C-727/22 
23 
choices have been made. 
91. If identifying a reasonable alternative for assessment at an early stage irrevocably 
binds a competent authority to developing that alternative to draft plan stage, and 
carrying out a full strategic environmental assessment on that alternative, even if it is 
subsequently rejected as unviable, it is inevitable that competent authorities will 
consider a narrower range of alternatives for assessment at the outset. 
92. Second, it is difficult to conceive how such a proliferation of plans, alternative 
plans and environmental assessments of plans and alternatives plans would facilitate 
public participation and contribute to better decision making; rather it may serve only 
to confuse and present as an obstacle to an otherwise accessible consultation process. 
In that respect it is important to guard against the risk that the public would be 
inadvertently prohibited from engaging with the consultation process as a result of 
being drowned in unhelpful detail, thereby undermining their ability to comment 
effectively during the consultation phase. 
93. Ireland’s proposed answer to the first part of Question 3 is therefore no. Should the 
CJEU disagree, Ireland’s proposed answer to the second part of Question 3 is yes. 
V. IRELAND’S PROPOSED ANSWERS 
94. Ireland’s proposed answers to the Questions referred are therefore as follows: 
Question 1: Article 2(a) of the SEA Directive means that a 
measure adopted by the executive arm of a Member State, other than by reason of a 
legislative or administrative compulsion, and not on the authority of any regulatory, 
administrative or legislative measure, is not a plan or programme within the meaning 
of that provision. 
Question 2 (Part 1): Article 3(1) read in conjunction with Article 3(8) and 
(9) of the SEA Directive means that a plan or programme which makes specific, 
albeit described as ‘indicative’, provision for the allocation of funds to build certain 
infrastructure projects with a view to supporting the spatial development strategy of 
another plan, itself forming the basis of downstream spatial development strategy, is 
not a plan or programme within the meaning of Article 2(a) to which the obligation in 
Article 3(1) of the SEA Directive applies. 
Question 2 (Part 2): Part 2 of Question 2 does not arise. Without prejudice 
FRIENDS OF THE IRISH ENVIRONMENT 
24 
to the foregoing, if the Court answers Part 1 of Question 2 in the affirmative, the fact 
that a plan has as its objective the allocation of resources means that it must be 
treated as a budgetary plan within the meaning of Article 3(8). 
Question 3 (Part 1): Article 5, and Annex 1, of the SEA Directive means 
that where an environmental assessment is required under Article 3(1), the 
environmental report for which provision is made therein should, once reasonable 
alternatives to a preferred option are identified, is not required to carry out an 
assessment of the preferred option and the reasonable alternatives on a comparable 
basis. 
Question 3 (Part 2): Part 2 of Question 3 does not arise. Without prejudice 
to the foregoing, if the Court answers Part 1 of Question 3 in the affirmative, the 
requirement of the Directive for assessment of the preferred option and the 
reasonable alternatives on a comparable basis is met if the reasonable alternatives 
are assessed on a comparable basis prior to the selection of the preferred option, and 
thereafter the draft plan or programme is fully developed and a complete SEA is then 
carried out in respect of the draft plan or programme only (and not also in respect of 
each of the reasonable alternatives). 
Counsel for Ireland: Margaret Gray SC, Fintan Valentine SC and Emma Synnott BL 
Signed:   Mark Tierney, Agent for Ireland on behalf of Maria Brown, Chief 
State Solicitor and Principal Agent 
Signed: Tony Joyce, Agent for Ireland on behalf of Maria Brown, Chief 
State 
Solicitor and Principal Agent
WRITTEN OBSERVATIONS SUBMITTED BY IRELAND – CASE C-727/22 
25 
 
SCHEDULE OF ANNEXES 
Number Description Paragraph 
first 
referenced 
Page No. 
in PDF of 
Annexes 
A.1 Draft National Planning Framework published for 
public consultation in September 2017 
61 22-174 
A.2 SEA Environmental Report on the Draft National 
Planning Framework published for public 
consultation in September 2017 
61 175-426 
A.3 SEA Statement published in March 2018 61 427-532 
A.4 National Planning Framework 1 533-715 
A.5 National Development Plan 2018 to 2027 1 716-825 
A.6 Judgment of the Court of Appeal dated 26 
November 2021, Friends of the Irish Environment 
v Government of Ireland & Ors [2021] IECA 317 
83 826-944 
A.7 Planning and Development Act 2000 (as 
amended), Sections 2, 10, 11, 12, 13, 22, 22A, 23, 
24, 37A, 143 (8 February 2018) 
4 944-955