Opinion of the Advocate General — ECLI:EU:C:2024:266
Date: 2024-03-21
Language of the case: English
Procedure: Reference for a preliminary ruling
Origin: Ireland

SUMMARY OF PROCEEDINGS TO DATE 
1. A summary of relevant facts is set out in Supreme Court’s request for a 
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preliminary ruling (§§2-8). A fuller chronology is provided at Section 3 of the 
judgment of the High Court. 
B. THE QUESTIONS REFERRED 
(1) First question 
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 of refusal of development consent and thus satisfies the test 
from Article 3(2) of the Directive? 
(2) Second question 
(a) 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? 
(b) If the answer to 2(a) 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 
with the meaning of Article 3(8)? 
(3) Third question 
(a) 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 
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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? 
(b) If the answer to question (a) 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? 
C. INTRODUCTION 
2. The Court of Appeal described the National Planning Framework (“NPF”) as 
a high-level policy document and “a macro spatial strategy which maps out 
general development goals for the country for the period up to 2040”.1 The 
NPF is the top-tier strategic planning document for Ireland, which sets the 
parameters for other strategic planning documents at lower levels. 
3. The NPF takes the place of a 2002 plan known as the National Spatial Strategy 
(“NSS”). The NPF is now provided for in Chapter IIA of Part II of the 
Planning and Development Act, 2000 (the “2000 Act”).2 Section 20B provides 
that the objectives of the NPF are: 
“(a) to establish a broad national plan for the Government in relation 
to the strategic planning and sustainable development of urban and 
 
1 Judgment, §69, quoting with approval §§5-13 of the High Court judgment: [2020] IEHC 225. 
2 This Chapter was inserted by section 18 of the Planning and Development (Amendment) Act, 2018, with 
effect from 22 October 2018 (see S.I. 436/2018). The legislation was at draft stage while the NPF was 
being prepared and is referred to in several of the relevant documents, including the NPF itself. Section 
20A provides that the NSS shall be known as the National Planning Framework. This includes “any 
document published by the Government which amends or replaces that Strategy”. The NPF replaces the 
NSS. 
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rural areas, 
(b) to secure balanced regional development by maximising the 
potential of the regions, and support proper planning and sustainable 
development, and 
(c) to secure the co-ordination of regional spatial and economic 
strategies and city and county development plans”. 
4. The National Development Plan (“NDP”) states3 that it “sets out the 
investment priorities that will underpin the successful implementation” of the 
new NPF and that it will “guide national, regional and local planning and 
investment decisions in Ireland over the next two decades to cater for an 
expected population increase of over 1 million people”. The Court of Appeal 
stated that the NDP “sets out how funding will be made available for certain 
projects which are considered essential to achievement of the national strategic 
outcomes identified in the NPF”.4 
5. Although the NDP describes itself as “a budget and financial plan, [which] is 
not part of the physical planning process”,5 it is described in its foreword as 
“fully integrated with the new approach to spatial planning in Ireland in the 
[NPF]”.6 The Court of Appeal quoted the judgment of Barr J. in the High 
Court that the plans “are closely integrated one with the other.”7 
6. The NPF was assessed under Directive 2001/42/EC (the “Directive” or the 
“SEA Directive”) and Directive 92/43/EEC (the “Habitats Directive”). 
7. This Court should note that the Court of Appeal accepted that the Government 
 
3 NDP, §1.2, p.4. 
4 Judgment of the High Court §11, quoted in the Judgment at §69. 
5 NDP, §1.12, p.12. 
6 NDP, p.2. 
7 Judgment of the High Court §12, quoted in the Judgment at §69. 
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had not conducted the required Appropriate Assessment for the purposes of 
the Habitats Directive at the time it took the initial decision to adopt and 
publish the NPF, on 16 February 2018, and granted certiorari quashing that 
decision.8 
8. However, the Government purported to “reaffirm” the decision to adopt the 
NPF on 29 May 2018. The Court of Appeal accepted the Government’s 
arguments that the process followed in so doing had the effect of curing any 
defect in the earlier process.9 Therefore, these proceedings only concern the 
interaction between the NPF, the NDP and the SEA Directive. 
D. THE FIRST QUESTION 1 
9. This question asks, in effect, whether the NPF was “required by legislative, 
regulatory or administrative provisions” within the meaning of Article 2(a) of 
the SEA Directive. 
(1) “Required by legislative, regulatory or administrative provisions” 
10. Article 2(a) of the Directive requires that plans or projects that “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” be subject to assessment 
for the purposes of the Directive. 
11. In Inter-environment Bruxelles,10 AG Kokott proposed (§30) that the word 
“required” excluded “plans and programmes which are provided for by 
legislative provisions but the drawing up of which is not compulsory”. The 
CJEU disagreed: 
 
8 See Judgment, §§93-106 and 287. 
9 See Judgment, §279. 
10 Inter-environment Bruxelles ASBL v. Region De Bruxelles-Capitale, Case C-567/10, 
ECLI:EU:C:2011:755 (Opinion), ECLI:EU:C:2012:159 (Judgment). 
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“[31] It follows that plans and programmes 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, and for the application, of Directive 2001/42 and, 
accordingly, be subject to an assessment of their environmental 
effects...” 
12. In A. (Wind turbines at Aalter and Nevele),11 the CJEU Grand Chamber 
reached a conclusion (§52) materially identical to that reached in Inter-
environment Bruxelles. 
13. A plan is “required” within the meaning of the SEA Directive where: 
(a) its adoption is regulated by national legislative or regulatory provisions; 
and 
(b) those provisions determine: 
(i) the competent authorities for adopting it; and 
(ii) the procedure for preparing it. 
14. These concepts must be interpreted in the light of the purpose of the Directive, 
which include: 
(a) to provide for a high level of protection for the environment; 
(b) to subject plans and programmes that are likely to have significant 
environmental effects to an environmental assessment during their 
preparation and before their adoption.12 
 
11 Case C-24/19, ECLI:EU:C:2020:503 (25 June 2020), §52. 
12 SEA Directive, Article 1, A. (Wind turbines at Aalter and Nevele), §46. 
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15. Hence, a “broad interpretation of the concept of ‘plans and programmes’” is 
required.13 
(2) Legal context of adoption of the NPF 
16. As identified by that Court, the NPF sits at the apex of the national planning 
framework. It has statutory effect by virtue of sections 9 and 10 of the 2000 
Act and all subsidiary land use plans must conform with it. By virtue of 
section 143 of the 2000 Act, the national planning board must have regard to 
it. The referring Court observed (§84) that: “the NPF does aim to - and will 
have - effects on downstream decision making within the meaning of Article 
3(2)(a)” of the Directive. 
17. At the time of its adoption - by the “re-affirmation” decision of the 
Government of 29 May 2018 - section 2 of the 2000 Act provided: 
“‘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”. 
18. The 2000 Act14 provided at this time that it was to be an objective of a regional 
spatial and economic strategy (“RSES”) made by a regional assembly “to 
support the implementation of the National Spatial Strategy”, by including 
strategies “which shall be consistent with the National Spatial Strategy”.15 A 
regional assembly was also required to ensure that the RSES was consistent 
with “national planning policy as set out in the National Spatial Strategy or 
any successor strategy”.16 Section 10(1A) of the 2000 Act provided that the 
written statement of a development plan (the main land use planning 
framework document for a county) “shall” include a core strategy which 
 
13 A. (Wind turbines at Aalter and Nevele), §§49-50. 
14 As amended by the Local Government Act, 2014, section 63(1). 
15 Section 23(1)(a). The RSES was required to address “any policies contained in the National Spatial 
Strategy in relation to national and regional population targets” (section 23(2)(a)). 
16 Section 23(3)(a)(iii). 
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shows that the development objectives “are consistent, as far as practicable” 
with national and regional development objectives in the NPF and RSES. 
19. Section 2 of the 2000 Act “regulated” the manner of adoption of the NPF 
(requiring that it be published) and identified the competent authority (the 
Government) thus satisfying the two cumulative criteria in §31 of Inter-
environment Bruxelles. The public notice of 30 July 2018 stated that the 
Government adopted and published the NPF “pursuant to section 2” of the 
2000 Act. 
20. Section 2 determined the body that was competent to adopt the NPF, namely 
the Government. The 2000 Act envisaged that the NSS (and therefore the 
NPF) would be effective and have legal effect upon publication by the 
Government. 
21. The provisions also determined the procedure for preparing the NPF, namely 
that the document must be “published” by the Government and be one “which 
amends or replaces” the NSS. On this point, the Implementation Roadmap for 
the NPF (July 2018) states: 
“...the legal position is that the [NPF] was adopted and published by 
the Government on 16 February 2018, as a strategy to replace the 
[NSS], for the purposes of Section 2 of the [2000 Act]...” 
22. As the referring Court stated (§59): 
“Two documents were circulated in July 2018, after the NPF was 
formally adopted. A formal Government Circular FPS04/2018 dated 3 
July 2018 and addressed to the chief executive of each local authority, 
the directors of each regional assembly, An Bord Pleanála, and the 
directors of planning services in City and County Councils and the 
senior planners in those councils and regional assemblies, enclosing a 
document called the ‘Implementation Road Map for the National 
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Planning Framework’ dated July 2018. It was noted that questions had 
been raised as to the ‘legal status’ of the NPF, and the answer in the 
opening page of the chapter entitled ‘Legal Status and Project 
Governance’ was again to point to s.2 of the [2000 Act] as the legal 
source of the authority to adopt the plan and there the NPF was 
described as a strategy to replace the NSS for the purposes of s.2 of the 
[2000 Act].” 
23. There is no requirement in EU law that the procedure for preparing and 
adopting a plan should be complex. 
24. Any doubt on these points should be resolved in the light of the need for a 
broad interpretation of the relevant concept, to secure the objectives of the 
Directive. 
(3) The analysis of the Supreme Court 
25. The referring Court was of the view that, even though the NPF described itself 
as being adopted pursuant to section 2 of the 2000 Act, it was in fact adopted 
by the Government in the exercise of the executive power of the State under 
Article 28.2 of the Irish Constitution.17 That article provides: “The executive 
power of the State shall, subject to the provisions of this Constitution, be 
exercised by or on the authority of the Government.” 
26. However, even assuming that the referring Court is correct in that conclusion, 
it does not exclude the NPF from the ambit of the Article 2 of the Directive. 
There is no dispute but that the NPF was “subject to preparation and/or 
adoption by an authority at national... level” for the purpose of the first indent 
of the definition of “plans and programmes” in Article 2(a). 
27. Further, that view of the referring Court (if correct) does not answer the crucial 
 
17 Reference, §11; Judgment of the Supreme Court, §106. 
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aspect of the question referred, namely whether the NPF satisfies the test in 
the second indent: was it “required by legislative, regulatory or administrative 
provisions”? The referring Court appears to believe that, because it located the 
source of the power to adopt the NPF in the Irish Constitution, the NPF could 
not satisfy that test. However, no such finding was made. 
28. On the contrary, the referring Court expressly accepted that whether a plan or 
programme is “required” within the meaning of Article 2(a) is an autonomous 
concept of European law18 and that insofar as this Court had interpreted that 
concept, it had done so broadly.19 
29. The referring Court addressed the decision of this Court in Bund Naturschutz20 
as follows (emphasis added): 
“[100] The Court clarified the position as to the meaning of ‘required’ 
in Article 2(a) as follows: 
‘Thus, in view of the intended purpose of that provision, 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.’ (at para. 37) 
[101] The approach here suggests that a plan or programme which has 
a legal basis for its adoption is capable of being treated as ‘required’ 
by the Directive.” 
30. The first question appears to proceed on the assumption that, because the 
 
18 Judgment of the Supreme Court, §86. 
19 See the referring Court’s analysis of A & Ors at §§87-98 of the judgment. 
20 Case C-300/20, EU:C:2022:102. 
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power to adopt the NPF came from the Irish Constitution, the NPF cannot 
have been required by “legislative, regulatory or administrative provisions”. 
However, these words also involve autonomous concepts of EU law, to be 
interpreted in the light of the purpose of the Directive. The fact that the legal 
basis is described as “constitutional” in the Irish legal order does not mean 
that it cannot qualify as “legislative, regulatory or administrative” in the EU 
context of the Directive. Were it otherwise, Ireland could entirely avoid the 
requirement for environmental assessment under the Directive by providing in 
legislation for effect to be given to a plan published by the Government, and 
then publishing a plan in the exercise of the executive power. This would 
frustrate the purpose of the Directive and is what occurred in the present case. 
31. This is to say nothing of the fact that the State repeatedly identified the NPF as 
being adopted pursuant to section 2 of the 2000 Act. 
32. This Court therefore does not need to rely on Article 3(2) of the Directive to 
conclude that the NPF falls within Article 2(2) thereof. Notwithstanding the 
curious phraseology of the referred question, this Court should answer it by 
concluding that the NPF was “required by legislative, regulatory or 
administrative provisions” and, as such, fell within the definition of “plans 
and programmes” in Article 2(a) of the Directive. 
(4) Amendment of the 2000 Act 
33. At the time the NPF was adopted, on 29 May 2018, proposed legislation was 
already advanced that would put the obligation to subject the NPF or any 
amendment to it beyond doubt. This is a relevant circumstance that this Court 
is entitled to consider. 
34. The Planning and Development (Amendment) Act, 2018 (the “2018 Act”) was 
enacted on 19 July 2018, having been introduced by the Government as a bill 
on 4 January 2018, passed by Dáil Éireann on 31 January 2018, and by both 
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houses of the Oireachtas on 11 July 2018. 
35. The 2018 Act inserted Chapter IIA in Part II of the 2000 Act. Section 20A now 
provides: 
“20A. The National Spatial Strategy, as amended having regard to the 
provisions of this Chapter including any document published by the 
Government which amends or replaces that Strategy or such 
subsequent document, shall be known as the National Planning 
Framework.” 
36. Section 20C provides: 
“(4) The Government shall prepare and publish the National 
Planning Framework and keep its implementation under review... 
(7) The preparation of the National Planning Framework shall be 
subject to the provisions of relevant EU Environmental Directives 
including the Strategic Environmental Assessment (SEA) and Habitats 
(Appropriate Assessment) Directive.” 
37. It is not necessary to rely on the amending legislation in order to bring the NPF 
within the ambit of the requirement for environmental assessment under the 
Directive. However, this Court should not, in any event, permit Ireland to 
circumvent that requirement by the expedient of publishing a plan before 
passing the relevant legislation. This would create a perverse incentive to 
publish a plan or programme before putting in place the legislative framework 
to support it. Such a result would be inimical to the objectives of the Directive 
identified in Article 1, as identified by this Court in a slightly different context 
in Patrice D’Oultremont v. Région wallonne.21 
 
21 Case-290/15, EU:C:2016:816 at §48 “ it is necessary to avoid strategies which may be designed to 
circumvent the obligations laid down in Directive 2001/42 by splitting measures, thereby reducing the 
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(5) The State represented that the NPF fell within Article 2(a) of the SEA 
Directive 
38. The State accepted repeatedly in documents published for public consultation 
that the NPF was subject to SEA. The NPF itself states:22 
“As part of the preparation of the [NPF], a number of environmental 
assessments have been carried out. These include a Strategic 
Environmental Assessment (SEA)…”23 
39. The SEA Scoping Report states: “The Department undertook SEA Screening 
in 2016 and determined that SEA of the NPF would be required”.24 
40. The Environmental Report is a document published for public consultation 
as part of the SEA process. On its face,25 it is a representation that SEA is 
required. It is full of references to the need for SEA of the NPF, some of 
which are highlighted below.26 
(a) The Introduction to the Non-Technical Summary states that it has been 
prepared as part of the SEA of the NPF,27 and that it “complies with 
the requirements” of the SEA Directive, as implemented by the SEA 
Regulations.28 
 
practical effect of that directive” 
22 NPF, §11.1, p.153 
23 SEA is addressed in more detail at p.153. See also NPF, p.158. 
24 SEA Scoping Report, §1.1, p.3 
25 Environmental Report, cover page 
26 See also the following references to the Environmental Report): • p.4, Table 2 (cf. Table 3.3, p.31 • p.5 
(cf. §3.3.3, p.32 • p.10 • “The consideration of alternatives is a requirement of the SEA Directive”, p.12 (cf 
§7.1, p.121 • SEA Statement: p.33; • §4.1, p.34« §§5.4-5.5, p.116 • §6.1.1, p.118. 
27 Environmental Report, p.1 Cf. p.21 
28 Ibid. Cf §3.3.2, p.30 
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(b) Under the heading, “SEA Methodology”, §3.2.1 states:29 
“An SEA screening of the NPF was undertaken by the 
Department in 2016 after which it was concluded that SEA 
would be required.”30 
41. In its Introduction, the SEA Statement records:31 
“This SEA Statement has been prepared as part of the Strategic 
Environmental Assessment (SEA) of the NPF in accordance with the 
relevant national and EU legislation...” 
42. The SEA Statement concluded: “The SEA of the National Planning 
Framework was carried out under S.I. 435 of 2004 as amended which 
transposes the [SEA Directive] into Irish law”.32 
43. The Statement of Opposition filed in these proceedings by the State stated: 
“While not so required, out of an abundance of caution the NPF was subject to 
a lawful assessment under the [SEA Directive]”.33 No grounds for this 
assertion were set out, and the point was not developed further. Nor was it 
advanced at any later stage of the proceedings. 
44. In contrast to the position concerning the NDP, the States’ submissions did 
not argue that the NPF fell outside the SEA Directive.34 
45. In her oral submissions to the High Court, counsel for the State said:35 
 
29 Environmental Report, pp.26-27 (emphasis added). 
30 Cf Table 1: SEA Stages, p.3 and Table 3.1, p.26. 
31 SEA Statement, p. 1. 
32 See also §7.1 (on monitoring), p.89; §8, p.93. 
33 Statement of Opposition, §8(a). 
34 See e.g. §66: “there is no national law that prescribes the procedure for the adoption or publication of 
the NDP”. 
35 High Court Transcript, Day 4, p.45 (emphasis added). 
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“...no issue is taken with that extended definition for present purposes 
in the sense that the National Planning Framework is caught by the 
Directive and was subjected to the Directive.” 
46. There is no suggestion in the High Court judgment that the Directive did not 
apply to the NPF. On the contrary, Barr J recorded counsel for the State as 
submitting that “it could not be credibly argued that the necessary assessments 
and evaluations as required by the SEA… had not been carried out”.36 
47. The State’s written submissions before the Court of Appeal did not say the 
SEA Directive was inapplicable. As to monitoring, the submissions positively 
asserted that the SEA Statement “complies with the requirements of the SEA 
Directive”. 
48. This issue formed no part of the appeal until raised by Murray J on the second 
day of the Court of Appeal hearing - a point which the State ultimately lost. 
49. The Court of Appeal judgment held against the State on this point: 
“[91] ...the contention that the NPF does not fall within the SEA 
Directive may be shortly rejected. The SEA Scoping Report advised 
that SEA should be applied, and this was accepted by the Department 
and subsequently the Minister and the government. The issue was not 
pleaded in the statement of opposition. There is no reference to this 
point in the respondents’ notice and there is no cross-appeal in relation 
to the judgment of the High Court on this point. Indeed, as the issue 
was not raised in the High Court, it is not raised in the judgment.”37 
50. It is of considerable significance that this point was only raised by the State in 
the barest reference in its opposition to these proceedings and then effectively 
abandoned thereafter in favour of a position consistent with the position it had 
 
36 High Court judgment, §28 
37 See also §§91, 93. 
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adopted throughout the public consultation process - that the NPF was subject 
to the SEA Directive and was assessed on that basis. 
51. This Court should be very slow to allow the State to seek to avoid obligations 
in respect of the SEA Directive in circumstances where the State repeatedly 
and expressly represented to the participating public (and to both the High 
Court and Court of Appeal) that the SEA Directive applied and, in its view, 
had been complied with. 
(6) Conclusion on the first question 
52. The first question should be answered by recognising that, contrary to the 
assumptions of the referring Court, the NPF was “required by legislative, 
regulatory or administrative provisions” within the meaning of Article 2(a) of 
the SEA Directive, whether those provisions be section 2 of the 2000 Act or 
Article 28.2 of the Irish Constitution. 
E. THE SECOND QUESTION 
53. By its second question, the referring Court asks, in effect, whether the NDP 
should have been subject to environmental assessment under the SEA 
Directive. The Applicant’s primary position is that it should have been so 
assessed because it was adopted with and is integral to the NPF and therefore 
falls within Article 2(a) and 3(a) of the SEA Directive, for the reasons 
identified above. As the Court recognised in NJ and OZ:38 
“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 
 
38 Case C-9/22, ECLI:EU:C:2023:176. 
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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.” 
54. Separately, the NDP is not a “financial or budget” plan for the purposes of the 
SEA Directive, and therefore the exclusion in Article 3(8) does not apply. 
55. The NDP is an infrastructure and spatial planning document designed to “drive 
Ireland’s economic, environmental and social progress over the next decade”. 
It identifies priority areas for spatial planning and development and includes 
initiatives designed to promote regional and rural connectivity. It shares 
precisely the same priority National Strategic Outcomes as the NPF and 
includes significant measures and objectives in relation to matters such as: 
compact growth, enhanced regional accessibility, strengthened rural 
economies, tourism, telecommunications, housing, climate action and climate 
change, water infrastructure, transport, research and learning. It provides for 
the establishment of a National Regeneration and Development Agency. 
56. In fact, very little or any of the content of the NDP could plausibly be regarded 
as a financial or budget plan. Instead, it identifies specific projects for which 
funding will be made available to support the NPF. As identified by the 
referring Court (§120): 
“One notable feature is how the investment priorities for transport are 
allocated under this plan which provides, inter alia, for the 
development of an Atlantic corridor between Cork, Limerick, Galway 
and Sligo, the development and financing of public transport in major 
urban centres, and the protection of existing inter-urban rail networks. 
Those road networks intended to be progressed are identified with 
some specificity. Funding for public transport is primarily for the 
upgrading or development of additional transport facilities in Dublin, 
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Cork, Galway, Limerick and Waterford.” 
57. It is impossible to reconcile the above with characterisation of the NDP as a 
budgetary project under the test in Bund Naturschutz (§62 emphasis added): 
“...must therefore be regarded as met where that plan or programme 
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 condition of 
such projects, or the allocation of resources connected with those 
projects.” 
58. The NDP establishes a significant body of criteria and detailed rules for the 
selection of projects and provides for the allocation of resources to those 
projects. It identifies specific projects and types of projects that will be 
supported, the location of those projects, and provides for the availability of 
preferential funding for those projects from the budget in the NDP. 
59. For example, the NDP identifies in detail a series of projects in relation to 
National Cultural Institutions and provides that “the coming five years will 
see the following projects advanced through the public spending code 
phases... National Archives - converting the Bishop St warehouse to a secure 
environmentally controlled Archival Repository and providing additional 
storage”39. Specific detail is provided in relation to some of the projects, for 
example in relation to the Crawford Gallery, where it is stated that “Grafton 
architects have been chosen as the design team, and work is underway on the 
design brief, planning and procurement stages of the Public Spending Code 
process.”40 
60. In other words, not only does the NDP set the criteria for the implementation 
of projects, it in fact selects the projects themselves and identifies those 
 
39 NDP, p.118 
40 NDP, p. 120 
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projects for the purposes of resource allocation.41 As the referring Court 
noted: “The plans are linked, and together set the framework, most obviously 
in transport infrastructure[,] to further the spatial development strategy 
provided in the NPF.”42 This is very far from a budget plan, as explained in 
the Commission Guidance on the implementation of the SEA Directive at 
§3.6: 
“Budgetary plans and programmes would include the annual budgets 
of authorities at national, regional or local level. Financial plans and 
programmes could include ones which describe how some project or 
activity should be financed, or how grants or subsidies should be 
distributed” 
61. While the NPF sets the broad framework for plans and projects under its 
auspices, the NDP takes the matter further by identifying specific, large 
projects that are regarded as compatible with and enabling of the NPF. After 
the adoption of the NPF and the NDP, no public servant could give 
consideration to anything other than the type and location of projects 
identified with specificity in the NDP. The fact that these projects may 
themselves require EIA or AA does not answer the objection that the plan that 
sets the framework for them has not been assessed. 
62. The answer to the first part of the second question should be in the affirmative. 
The answer to the second part must be that the concept of a financial or budget 
plan is one of substance rather than form. Moreover, as exception it must be 
construed narrowly. It cannot be that the presence of budgetary measures is 
sufficient to avoid the need for environmental assessment under the Directive. 
 
41 See infra Box 13.1 “Enhanced Rehabilitation of Bord na Mona peatlands previously harvested for 
commercial purposes”. 
42 Supreme Court judgment, §122. 
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F. THE THIRD QUESTION 
63. The referring Court asks, in effect, whether Article 5 of the SEA Directive 
requires comparable consideration of the preferred option and the reasonable 
alternatives to that preferred option. If the answer to that question is in the 
affirmative, it asks whether a comparable assessment of reasonable 
alternatives is permitted prior to the selection of a preferred option, with the 
latter being subjected to “more complete SEA assessment” thereafter.43 
64. The options selected as reasonable alternatives are assessed in Chapter 7 of the 
Environmental Report that accompanied the NPF. It begins by setting out 
various strategic options, or “Pillars”, which were used to select the 
alternatives identified in §7.2.2 as reasonable alternatives. 
65. Five alternatives are identified. These are each briefly described and a table or 
matrix is set out in which, for each environmental issue, a mark of “-/0/+”, or 
some combination, is given. These are intended to indicate potential negative, 
neutral, and positive effects of the alternatives. 
66. The assessment matrix is incomprehensible.44 It evaluates, for example, Option 
3 (Regional Effectiveness and Consistency), Option 4 (Regional Dominance 
and Settlement Diversity), and Option 5 (Regional Dominance and Settlement 
Consistency), which have “clear differences”, in exactly the same way: by 
giving a “+/-” score in respect of each issue. 
67. The rejected reasonable alternatives were each assessed on the basis of a small 
matrix and short narrative statement, occupying only a few pages of text. By 
contrast, the preferred option was subjected to extended analysis, occupying 
some 57 pages of text in Chapter 8 of the Environmental Report. 
68. There is no basis in Article 5(1) of the Directive for an approach that allows 
 
43 For a good summary see Court of Appeal Judgment, §§140-142. See also Judgment of the High Court, 
§§41-61. 
44 See Second Affidavit of […], §§5-18. 
 WRITTEN OBSERVATIONS SUBMITTED BY FRIENDS OF THE IRISH ENVIRONMENT CL– CASE C-727/22 
  22 
reasonable alternatives to be addressed (however inadequately) in an 
Environmental Report, for a preferred alternative to be selected on foot of the 
scantest analysis, and for that preferred alternative to be assessed in great 
detail in the same Environmental Report. 
69. It is not disputed that the State was entitled to a wide margin of appreciation in 
choosing the alternatives that were regarded as “reasonable” and that its 
obligation was only to provide “outline” reasons for making that decision. It 
might even be that, in respect of some plans, there is no reasonable alternative. 
But that was not the case here. 
70. In this case, five options were expressly found to be reasonable. Once this was 
done, the reasonable alternatives had to be assessed at the same level and on 
the same basis as the preferred option, to facilitate proper comparison. 
71. The Commission Guidance states: 
“[5.6] Article 5(1) gives the basic requirements for the environmental 
report. The tasks of the report are to identify, describe and evaluate the 
likely significant effects on the environment of the plan or programme 
and its reasonable alternatives. Annex I gives further provisions on 
which information must be provided concerning these effects. The 
studying of alternatives is an important element of the assessment and 
the Directive calls for a more comprehensive assessment of them than 
does the EIA Directive.” 
72. The Commission Guidance continues: 
“[5.12] In requiring the likely significant environmental effects of 
reasonable alternatives to be identified, described and evaluated, the 
Directive makes no distinction between the assessment requirements 
for the drafted plan or programme and for the alternatives. The 
essential thing is that the likely significant effects of the plan or 
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23 
programme and the alternatives are identified, described and evaluated 
in a comparable way. The requirements in Article 5(2) concerning 
scope and level of detail for the information in the report apply to the 
assessment of alternatives as well.”45 
73. The case file discloses no reason why each of the reasonable alternatives could 
not have been subjected to an analysis comparable to that applied to the 
preferred option. 
74. Article 5 of the SEA Directive should 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. 
75. There is no basis in the Directive for a comparable assessment to be carried out 
and then a separate and later full assessment to be carried out on the preferred 
option. As identified by the Commission, the requirement in the SEA 
Directive is for comparable assessment. There is no provision for variable 
assessments in an environmental report and no distinction in the SEA 
Directive between assessment and “full assessment”. 
G. CONCLUSION 
76. This Court should answer the questions referred in line with these 
observations. 
Filed via eCuria on 31 March 2023 
N. STEEN SC 
 
45 The Commission Guidance has not previously been the subject of any decision of the Irish courts, but has 
been followed by the courts of England and Wales in a series of cases: see Heard v. Broadland District 
Council, [2012] EWHC 344 (Admin), §71, Ashdown Forest Economic Development LLP v. Secretary of 
State for Communities and Local Government, [2014] EWHC 406 (Admin)., §97; R. (Friends of the Earth 
England, Wales and Northern Ireland Limited) v. Welsh Ministers, [2015] EWHC 776 (Admin), §88. 
 WRITTEN OBSERVATIONS SUBMITTED BY FRIENDS OF THE IRISH ENVIRONMENT CL– CASE C-727/22 
  24 
J. KENNY BL 
DR F. LOGUE