Judgment;Summary — ECLI:EU:C:2023:176
Date: 2023-03-09
Language of the case: English
Court formation: Seventh Chamber
Subject matter: Environment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Ireland

Anonymised version 
 C-9/22 - 1 
Case C-9/22 
Request for a preliminary ruling 
Date lodged: 
5 January 2022 
Referring court: 
High Court (Irlande) 
Date of the decision to refer: 
30 November 2021 
Applicants: 
NJ 
OZ 
Respondents: 
An Bord Pleanála 
Ireland 
Attorney General 
Notice party: 
DBTR-SCRI Fund 
      
THE HIGH COURT 
JUDICIAL REVIEW 
[OMISSIS] 
[National reference numbers] 
EN 
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[OMISSIS] 
(No. 3) 
JUDGMENT of [OMISSIS] [the presiding judge] delivered on Tuesday the 
30th day of November, 2021 
1 In Kerins v. An Bord Pleanála (No. 1) [2021] IEHC 369, [2021] 5 JIC 3102 
(Unreported, High Court, 31st May, 2021), I dismissed the applicant’s case on 
domestic law points and indicated an intention to refer certain EU law questions to 
the CJEU. 
2 In Kerins v. An Bord Pleanála (No. 2) [2021] IEHC 612, (Unreported, High 
Court, 4th October, 2021), I issued certain clarifications [on] the No. 1 judgment at 
the request of the parties. 
3 I now make the formal order for reference [OMISSIS]. 
Subject matter of the dispute 
4 The applicant[s] seek an order quashing a decision of An Bord Pleanála (the 
board), as competent authority for development consent here, to grant planning 
permission for a housing development. The applicants also seek a declaration that 
s[ection] 28 of the Planning and Development Act 2000 (the 2000 Act) is invalid 
as contrary to EU law, specifically the habitats directive 92/43/EEC and the 
environmental impact assessment (EIA) directive 2011/92/EU[,] as amended by 
directive 2014/52/EU[,] on the grounds that mandatory guidelines under that 
section interfere with the process of appropriate assessment (AA) or EIA. 
Facts 
5 The site to which this application relates is situated in Dublin’s south inner city 
[OMISSIS]. 
6 The Dublin Development Plan 2016 – 2022 was adopted by Dublin City Council 
(the council), as the planning authority, on 23rd September, 2016 and came into 
force on 21st October, 2016. 
7 The making of a development plan is a statutory obligation (s[ection] 9(1) of the 
2000 Act). 
8 The area is designated in the Development Plan as a Strategic Development and 
Regeneration Area (SDRA), with the title “St. Teresa’s Gardens and Environs 
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SDRA 12”. The overall SDRA includes two former industrial sites previously 
operated by Player Wills and Bailey Gibson. 
9 A non-statutory development framework plan was prepared by the council in July 
2017 to implement SDRA 12. This included a proposed park measuring 0.2 
hectares within the Bailey Gibson site. 
The ministerial guidelines 
10 Ministerial guidelines entitled Urban Development and Building Height 
Guidelines, were adopted in 2018 under s[ection] 28 of the 2000 Act. The 
guidelines were themselves subjected to strategic environmental assessment 
(SEA). 
11 The guidelines do not mandate grant of permission, but allow for such permission. 
[OMISSIS] the guidelines require the grant of permission to be an available 
option, even where specific objectives of the city or county plan, or local area 
plans, or related environmental considerations, would dictate otherwise. Hence a 
conclusion that permission cannot be granted[,] by reference to such factors[,] is 
precluded by the guidelines. 
12 Paragraph 3.1 of the 2018 guidelines baldly states that “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 [OMISSIS].” 
13 It is clear that that approach, which in turn animates the binding SPPRs later in the 
document, is based on government housing policies and not on purely 
environmental considerations. Thus the case specifically raises the issue of the 
lawfulness of mandatory guidelines that have their origin in policies motivated 
primarily, albeit not exclusively, by non-environmental considerations. 
14 Specific Planning Policy Requirement 3 (SPPR 3) states as follows: 
“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.” 
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15 I reject the board’s submission that compliance with the guidelines does not 
preclude any particular outcome. It precludes a decision by the board that the 
grant of permission is itself ruled out by the development plan. Admittedly, the 
board might go on to refuse permission in any event on other grounds, but the one 
thing that is absolutely clear is that, if the foregoing applies, then the board is not 
entitled to refuse permission because “specific objectives of the relevant 
development plan or local area plan may indicate otherwise”. 
16 The fact that there are some permissive-type terms used in the phraseology of 
SPPR 3(A) is a matter of wording rather than substance because under the 
statutory provision in s[ection] 28, compliance is mandatory. The board submits 
that the “criteria above” referred to in SPPR 3(A) includes the criterion that 
“[r]elevant environmental assessment requirements, including SEA, EIA, AA and 
Ecological Impact Assessment, as appropriate” are satisfied. However, that 
doesn’t answer the question as to how the SPPR impacts on that process. 
17 Section 28(1C) of the 2000 Act provides that where ministerial guidelines under 
the section contain specific planning policy requirements, the board shall comply 
with those requirements. That is mandatory. 
18 The guidelines here [OMISSIS] indicate that the planning authority “may approve 
such development, even where specific objectives of the relevant development 
plan or local area plan may indicate otherwise”, in respect of developments 
meeting the stated criteria. While phrased in permissive terms, that has the effect 
of precluding a decision by the planning authority that the grant of permission 
would be ruled out by the wording of the development plan or local area plan. 
That has a mandatory effect [OMISSIS]. 
19 The board is obliged to comply with those guidelines and, therefore, is precluded 
from holding that the development plan or local area plan rules out the grant of 
permission. 
The Masterplan 
20 A masterplan is expressly envisaged in the development plan, para[graph] 2.2.8.1 
of which states that “Dublin City Council will prepare area-specific guidance for 
the strategic development and regeneration areas (SDRAs) and key district 
centres, using [OMISSIS] schematic masterplans [OMISSIS] [other elements 
irrelevant to the present case].” The development plan was subject to [OMISSIS] 
SEA, but the masterplan was not. 
21 A masterplan for the area was prepared jointly by the notice party’s advisers 
[OMISSIS] and the council[,] dated January 2020. That was screened for AA by 
the developer’s planning consultants on 15th January, 2020. It was not subjected to 
SEA. The masterplan includes the removal of the public open space from the 
Bailey Gibson site to be provided elsewhere at a later stage of development with a 
financial contribution from the developer. 
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Capacity in which masterplan was adopted 
22 I reject the board’s interpretation that the masterplan was adopted in the council’s 
capacity as “landowner”. [OMISSIS] The adoption of the masterplan is clearly not 
limited to the council’s role as landowner because it also envisages works on land 
not owed by the council. But even if it related to the council’s land alone, it 
engages the council’s function as local authority. 
23 It is true that in relation to particular developments, the council is sometimes the 
competent authority and sometimes the developer – a distinction reflected in for 
example art[icle] [9a] of the EIA directive 2011/92/EU, as amended by directive 
2014/52/EU. Insofar as developments on lands owned by the notice party to these 
proceedings are concerned, the council is clearly not the developer. But as a 
matter of domestic law, even where the council is both the landowner and the 
developer, it still acts in its capacity as the council [OMISSIS]. 
24 [OMISSIS] [Repeats, in essence, §23 and 26] 
25 In addition, given that the development plan was adopted in the council’s capacity 
as planning authority, and that it envisages a masterplan guiding future planning, 
any such masterplan [OMISSIS] must also be taken to be in law an act of the 
council in its capacity as planning authority. [OMISSIS] [Obiter comments 
because the judge has already made the finding of fact that the council acted qua 
planning authority.] 
26 In the present case, the inevitable conclusion is that the masterplan was agreed to 
by the council both in its capacity as local authority and in its capacity as planning 
authority, as well as being a landowner. 
Relationship of masterplan to development plan 
27 The masterplan is not made under any specific statutory provision and nor does it 
formally form part of the development plan. However, the masterplan is expressly 
envisaged by the development plan and is to that extent and in that sense made 
“under” the statutory development plan, i.e., it is a specific measure taken further 
to the development plan that is envisaged by the development plan. 
28 The masterplan does not formally modify the development plan, but it envisages 
developments being allowed that would not be consistent with the development 
plan as originally adopted. 
29 The Chief Executive of the city council has authority to act in relation to a wide 
range of matters on behalf of the council without the positive approval of elected 
members. Such acts are acts of the council. Those actions include agreement to a 
masterplan. [OMISSIS] [Consideration of domestic law that supports that finding] 
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30 The masterplan would in effect amount to a deviation from the development plan 
in the sense that it expressly envisages a different set of developments, 
particularly in terms of heights. 
The application 
31 The developer engaged in pre-planning consultation on 21st January, 2020 and 
formally applied for permission on 25th May, 2020 under s[ection] 4(1) of the 
Planning and Development (Housing) and Residential Tenancies Act 2016. That 
was the first of four planning applications envisaged in relation to the site and 
environs within the masterplan. 
32 The senior planning inspector of An Bord Pleanála recommended refusal of the 
application on 20th August, 2020. The board, however, disagreed, and granted 
permission on 14th September, 2020. The permission authorised a “Build to Rent” 
development allowing for the demolition of all existing structures on site and the 
construction of 416 dwellings in five blocks ranging from 2 storeys to 16 storeys, 
as well as tenant amenities, communal open space, childcare facilities, 
commercial floor space, an ESB substation and associated works such as parking 
places. 
33 There are multiple references to the masterplan in the decision. It is referred to 68 
times in the inspector’s report, and compliance with a financial development 
contribution to give effect to the masterplan is made into a binding condition at 
condition number 24. 
Condition 24 
34 Condition 24 states that the developer shall pay €4,000 per unit (as updated) to the 
planning authority as a special contribution in lieu of public open space provision 
under s[ection] 48(2)(c) of the 2000 Act. [OMISSIS] [Repeated, in essence at §36 
below] 
35 Condition number 24 obviously gives effect to the masterplan. The purpose of the 
payment is to give effect to the masterplan to the extent of providing funding for 
public open space in the masterplan area. While that does [not] create a binding 
obligation to give effect to the masterplan in full, it clearly earmarks the specific 
funds to be used for open space within the masterplan area. [OMISSIS] [Elements 
irrelevant to the questions referred] 
36 The masterplan didn’t specifically require the imposition of condition 24, but the 
imposition of conditions of this nature is reflected in the development plan which 
provides (at para[graph] 16.10.3) that “[p]ublic open space will normally be 
located on-site, however in some instances it may be more appropriate to seek a 
financial contribution towards its provision elsewhere in the vicinity”. [OMISSIS] 
Without the masterplan there would be no specific public open space provision for 
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which the special contribution would be required. The imposition of condition 24 
does [not] change the formal legal status of the masterplan, but it does amount to 
legally enforceable implementation of a measure envisaged by the masterplan. 
Reliance on the ministerial guidelines in the development consent here 
37 The fact that the board[,] under the heading of the EIA in its decision[,] did [not] 
expressly mention SPPR 3 or the building heights guidelines is irrelevant, both in 
fact and in law. Lack of express mention is not equivalent to lack of consideration. 
38 The board referred to the building heights guidelines at para[graph] (f) of the 
“Reasons and Considerations” section at the outset of the board’s decision. In 
accordance with established law, therefore, the board[,] in carrying out the EIA[,] 
did rely on the building heights guidelines among a range of other materials. 
[OMISSIS] [obiter comments] the fact that the building heights guidelines were 
[not] referred to under the EIA heading is irrelevant. 
39 It is true that EIA is first and foremost a matter of process rather than outcome, 
but at the end of the assessment process is a judgment as to whether the impacts 
identified are acceptable or not in environmental terms; and that aspect is clearly 
tied into the ministerial guidelines. 
40 As a matter of fact and law the board clearly had regard to the mandatory 
guidelines in all of the aspects of the decision. That follows from: 
(i) the specific mention of regard having been had to the mandatory guidelines 
in the “Reasons and Considerations” section; 
(ii) the absence of any wording in the decision disapplying that regard in respect 
of the EIA section of the decision and 
(iii) established domestic case[-]law that if the decision-maker states that a 
matter has been considered then it should be taken as having been 
considered in the absence of proof to the contrary. 
41 Accordingly, the consideration of the guidelines must include the EIA process. 
42 The practical effect of the mandatory nature of ministerial guidelines may vary 
from case to case [OMISSIS] But [OMISSIS] the impact of the statutory provision 
can be demonstrated in the present case by comparing the board’s decision with 
the inspector’s report. In the inspector’s report of 20th August, 2020, there was 
considerably more emphasis on environmental issues, which gave rise to a 
recommendation for refusal of the application. The board, however, gave far more 
weight to the impact of SPPR 3 in deciding to grant permission on 14th September, 
2020. Thus, while compliance with the guidelines does [not] entirely pre-
determine the outcome, because of the possibility that a permission might be 
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refused on some other basis, it does skew the analysis strongly in favour of 
granting permission, and that is what happened here. 
Relevant legal materials 
43 A list of the relevant EU, international and domestic legal material is summarised 
[and] is set out in the appendix to the judgment together with web links. 
The relevant grounds of challenge 
44 Following the No. 1 judgment which rejected a number of grounds of challenge 
there are two live grounds. 
45 The first complaint is that the decision relied on a masterplan which had not been 
subjected to SEA. 
46 The second complaint is that the statutory requirement to comply with ministerial 
guidelines gives rise to a breach of the EIA directive [OMISSIS]. The applicants 
take objection to s[ection] 28(1C) of the 2000 Act which provides that where the 
guidelines contain specific planning policy requirements, the board shall comply 
with those requirements. The core issue is one of interpretation and of whether the 
EIA directive [OMISSIS] precludes regard being had to national mandatory 
policies. A particular kind of policy comes into focus here, because para[graph] 
3.1 of the 2018 guidelines, which in turn animates the binding SPPRs later in the 
document, is based on government housing policies and not on purely 
environmental considerations. [OMISSIS] [Repetition and elements irrelevant to 
the questions referred]. 
47 The applicants contend that the outcome was “pre-determined” by the guidelines, 
but even if that [is] a slight overstatement, certainly the outcome was strongly 
suggested by the guidelines. As noted above, one can certainly see that by 
comparing it with the inspector’s report which placed more emphasis on 
environmental considerations. 
Questions of European law arising 
48 It seems to me that a number of questions of European law arise from the 
substantive grounds identified above, and I consider it appropriate in all 
circumstances to make a reference to the Court of Justice under art[icle] 267 of the 
TFEU. 
The first question 
49 The first question is; 
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does art[icle] 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. 
50 The applicants’ position is that a plan or programme as defined by Art[icle] 2(a) 
that is prepared by a local authority is subject to the obligations under the SEA 
Directive 2001/42. It does not matter whether the plan is exclusively prepared by 
the authority or if it is prepared in collaboration with or with the assistance of a 
developer. The obligations and effect of the Directive are the same. It would 
entirely undermine the purpose of the Directive if the requirement to comply with 
its obligations was capable of being avoided or circumvented by the device of 
preparation in collaboration as a joint plan or programme. 
51 The board’s position is in the negative. 
52 However the answer supplied by the board does [not] directly answer the question 
and conflates it with the second question, so it would only confuse matters to 
repeat that answer here. 
53 The State respondents’ position is that in circumstances where the Court has found 
that the masterplan was subject to preparation and/or adoption by Dublin City 
Council, qua local authority and planning authority, and that it was envisaged by 
the development plan, the State Respondents consider that the first indent of the 
definition of ‘plans and programmes’ in Article 2(a) of the SEA Directive is 
satisfied. 
54 The State’s answer seems to imply that the first question should be answered 
“yes”. However [OMISSIS] the proposed answer to the second question that was 
[OMISSIS] [contained in its reply to the first question] seems [OMISSIS] to 
contradict the State’s formal answer to the second question which is set out below. 
55 The notice party’s proposed answer was negative but also seems to be an attempt 
to answer the second question and not the first question [OMISSIS]. 
56 My proposed answer to the question is “Yes”. A purposive interpretation of the 
directive leads to the conclusion that a plan prepared by a local authority jointly 
with some other entity should be treated in similar manner to one prepared by a 
local authority alone. 
57 The reason for the reference of this question is that it was argued at the hearing 
that a jointly prepared plan did not come under the first indent of the definition of 
“plans and programmes” in art[icle] 2(a), and if the answer is “No” then the 
applicants’ argument based on the SEA directive would fail. 
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The second question 
58 The second question is: 
does art[icle] 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”. 
59 The applicants’ position is that the preparation of the masterplan is a mandatory 
obligation that is binding on the planning authority under the provisions of the 
Planning and Development Act, 2000[,] as amended. The masterplan is required 
to set out the framework for the development in the area to which it relates, and as 
a matter of fact the masterplan has satisfied this requirement. 
60 The board’s position is in the negative[. It considers] that the concept of “plans 
and programmes” as defined [in] Article 2(a) of the SEA Directive does not 
include a plan or programme envisaged by a statutory development plan where the 
preparation of such a plan or programme is not itself an enforceable legal 
requirement and where any such plan or programme is non-binding and does not 
contain conditions or criteria with which future development consents must 
conform and does not produce binding legal effects. 
61 The State respondents’ position is that[,] in accordance with the well-established 
case law of the CJEU, plans or programmes whose adoption [OMISSIS] [is] 
regulated by national legislative or regulatory provisions [and] which [provisions] 
determine the competent authorities for adopting them and the procedure for 
preparing them, are [to be] regarded as “required” within the meaning of Article 
2(a) the Directive. Therefore, hypothetically, the State Respondents consider that 
a plan or programme adopted by a local authority in circumstances where the 
adoption of [the] same is expressly provided for or contemplated by that local 
authority’s Development Plan would come within the definition of a plan or 
programme within the meaning of Article 2(a). 
62 [OMISSIS]. [Considerations relevant to questions disposed of previously by the 
presiding judge] 
63 The notice party’s position is that the concept of “plans or programmes” within 
the meaning of Article 2(a) of Directive 2001/42/EC does not include a plan or 
programme envisaged by a statutory development plan where the preparation of 
such a plan or programme is not itself an enforceable legal requirement and where 
any such plan or programme is not capable of producing binding legal effects. 
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64 My proposed answer to the question is “Yes”. Even though the masterplan is not 
itself a binding legal instrument, it is expressly envisaged by the statutory 
development plan which has legal force and is made under a provision of primary 
legislation. That creates a sufficient link to the legislative, regulatory or 
administrative provisions to draw the conclusion that the masterplan is required by 
those provisions. 
65 The reason for the reference of this question is that if the answer is “No” then the 
applicants’ argument based on the SEA directive would fail. 
The third question 
66 The third question is: 
does art[icle] 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. 
67 The applicants’ position in effect is that the answer is “Yes”, in that the 
masterplan is a plan which falls within art[icle] 3(2) of [Directive] 2001/42/E[C] 
as a plan prepared for town and county planning and/or land use and which sets 
the framework for future development cons[ents] listed in annex II [to] council 
directive 85/337/EEC. 
68 The board’s position is that the concept of “plans and programmes” for the 
purposes of Article 3(2)(a) of the SEA Directive does not include a plan or 
programme, such as the Masterplan, which (a) is non-binding, (b) does not set the 
framework for future development consent of projects listed in Annexes I and II to 
the EIA Directive and does not operate as a constraint on the discretion of the 
competent authority charged with making the decision about development consent 
for such projects, and (c) where that plan does not itself modify a Plan that was 
itself subject to an environmental assessment under the SEA Directive. 
69 The State respondents’ position is that in circumstances where the Court has found 
that the masterplan “is not itself directly legally binding”, and that it “does not 
formally modify the development plan”, the masterplan does not effect a 
modification of a plan that was itself subject to SEA (i.e., the development plan). 
Neither can the masterplan be regarded as setting the framework for future 
development consent [for] [OMISSIS] projects within the meaning of the 
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principles enunciated in case-law of the CJEU interpreting Article 3(2)(a) of the 
SEA Directive. 
70 The notice party’s position is that insofar as the [m]asterplan contains an 
indicative plan which demonstrates how development on connected sites may 
occur and, in particular, demonstrates the heights of proposed buildings on those 
sites, it is consistent with the Urban Development and Building Height Guidelines 
published by the Minister for Housing, Planning and Local Government (which 
were subject to SEA). The [m]asterplan does not limit the discretion of the 
competent authority in the assessment of an application for development consent. 
71 My proposed answer to the question is “Yes”. The whole purpose of the 
masterplan is to set the framework for future development consents. Given that 
the masterplan is both envisaged by the statutory development plan, and is 
referenced so clearly in the inspector’s report and thus the process of the actual 
grant of the development consent at issue here, there is a sufficient relationship 
between the masterplan and the setting of a framework for future development 
consent as [to] have the result that it falls within art[icle] 3(2)(a). This is 
reinforced by the fact that the masterplan envisages [more] modified outcomes in 
terms of development than the statutory development plan did, and that the 
development consent actually granted reflects those modified outcomes to some 
extent, rather than the formal statutory development plan. 
72 The reason for the reference of this question is that if the answer is “No” then the 
applicants’ argument based on the SEA directive would fail. 
The fourth question 
73 The fourth question is: 
whether art[icle] 2(1) of directive 2011/92/EU has 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. 
74 The applicants’ position is in effect that the answer is “Yes”, and in particular that 
art[icle] 2(1) of [OMISSIS] directive 2011/92/EU has the effect of [precluding 
regard being had by] [OMISSIS] a competent authority in the process of EIA to 
mandatory government policies which are not based exclusively on environmental 
criteria. 
75 The board’s position is that the EIA Directive does not preclude the competent 
authority having regard, in the process of EIA, to government policy regarding 
building heights which has itself been subject to environmental assessment under 
the SEA Directive. No such preclusion is contained in the text of Article 2(1) or 
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elsewhere in the EIA Directive. The assessment of significant effects on the 
environment by the competent authority relies on value-dependent and context-
dependent judg[e]ments as to what is important, desirable, or acceptable with 
regard to changes triggered by the project in question in light of the project’s 
specific circumstances. 
76 The State respondents’ position is that the EIA Directive does not preclude regard 
being had by the competent authority, in an integrated EIA procedure carried out 
in parallel with other assessments to determine an application for development 
consent, to national planning policy in respect of building heights (which has itself 
been subject to SEA under directive 2001/42[/EC]). The SPPRs contained in 
guidelines issued under Section 28C of the Planning and Development Act 2000 
(as amended) are policy requirements; they are not determinative of the outcome 
of an application for development consent and do not have any impact on the 
requirement to carry out an EIA in accordance with Part X of the Planning and 
Development Act 2000 (as amended). Moreover, the guidelines at issue in this 
case [OMISSIS] expressly provide that SPPR 3 thereof is subject to such 
environmental assessment requirements as may be required by EU law, including 
EIA, and SPPR 3 is not in any event mandatory in its terms. 
77 The notice party’s position is that a competent authority is entitled to have regard 
to guidelines published by a Member State which contain development 
management criteria in respect of building heights of residential developments, 
which of themselves are not mandatory or determinative of the outcome of the 
EIA, where those guidelines have been subject to an SEA for the purpose of 
Directive 2001/42/EC. 
78 My proposed answer to the question is “Yes”. The whole object and purpose of 
the EIA directive is to identify impacts on the environment, broadly defined, to 
enable an objective, environmentally-based judgement to be formed as to whether 
those impacts are acceptable. A provision of domestic law that requires the 
planning process overall[,] including the EIA process[,] to comply with a policy 
instrument (called a “guideline” but [which is] in fact mandatory) from central 
government that is based significantly on social and economic considerations 
rather than purely environmental considerations cuts across that purpose. It is 
irrelevant that the ministerial instrument does not mandate the grant of permission 
because it impacts on the process in such a way as to be likely to create that 
outcome in many cases such as this one. 
79 The reason for the reference of this question is that if the answer is “Yes”, then the 
relevant domestic legislation is not in conformity with EU law, and the decision 
made in accordance with that legislation is invalid. 
80 [OMISSIS]: 
(i). [OMISSIS] 
(ii). [OMISSIS] 
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[OMISSIS] [Repeats the questions set out at § 49, 58, 66 and 73 above] 
APPENDIX - WEB LINKS 
European law 
[OMISSIS] 
European case law 
[OMISSIS] 
International law 
[OMISSIS] 
Domestic legislation (and related material) 
(i) The Planning and Development Act 2000, as amended. 
[OMISSIS] 
(ii) The Local Government Act 2001, as amended. 
[OMISSIS] 
(vii) The Planning and Development (Housing) and Residential Tenancies Act 
2016, as amended. 
[OMISSIS] 
(viii) The Dublin City Development Plan 2016–2022. 
[OMISSIS] 
(ix) The Dublin City Council Masterplan for Player Wills, Dublin City Council 
and Bailey Gibson Lands (2017) 
[OMISSIS] 
(x) The Urban Development and Building Heights Guidelines for Planning 
Authorities (December 2018). 
[OMISSIS] 
Domestic case law 
[OMISSIS] 
AN BORD PLEANÁLA AND OTHERS 
  15 
Anonymised version 
(xii) Kerins v. An Bord Pleanala (No. 1) [2021] IEHC 369, [2021] 5 JIC 3102 
(Unreported, High Court, 31st May, 2021). 
[OMISSIS] 
(xiii) Kerins v. An Bord Pleanala (No. 2) [2021] IEHC 612, (Unreported, High 
Court, 4th October, 2021). 
[OMISSIS] 
[OMISSIS] [Procedural order effecting the reference and re-stating the questions 
as set out above] 
[OMISSIS] [Identity of registrar of the High Court] 
[OMISSIS] [Names of the parties’ representatives]