The High Court has proposed referring three questions of EU law to the Court of Justice of the European Union over a planned 416-home development in Dublin’s south inner city.
In a judgment delivered on 31 May 2021, Mr Justice Humphreys said he would in principle make the reference, subject to a formal order. He directed the parties to facilitate it. The questions concern whether EU rules on strategic environmental assessment cover a masterplan jointly prepared by a local authority and a private developer, and whether environmental impact assessment rules restrict reliance on mandatory government policies that are not based exclusively on environmental criteria.
The proceedings were brought by Sinead Kerins and Mark Stedman against An Bord Pleanála, Ireland and the Attorney General. DBTR-SCR1 Fund, a sub-fund of CWTC Multi-Family ICAV, was named as notice party.
The board granted permission in September 2020 for demolition of existing structures and construction of 416 dwellings in five blocks, ranging from two to 16 storeys, with tenant amenities, communal open space, childcare facilities and commercial space. The board had disagreed with its senior planning inspector, who recommended refusal.
The applicants sought to quash the permission and challenged, among other matters, the treatment of public open space, building heights, planning conditions and environmental assessment. The judge rejected the domestic-law grounds addressed in the judgment. He said the development plan did not require each individual development in the area to provide open space, and found no demonstrated illegality in the challenged conditions. He also rejected the applicants’ argument that the scheme breached the plan’s limits on the number of mid-rise or taller buildings: the height figures had been measured from Ordnance Datum, rather than from ground level. The board had found a material contravention concerning building heights, but the judge said the planning guidelines provided a basis for that decision.
On the habitats directive argument, the judge said the alleged hydrological connection between the site, the wider masterplan area and the River Poddle had not been put before the board. He therefore treated it as new evidence that should not be introduced for the first time in the judicial review. The applicants withdrew a separate point insofar as it concerned the habitats directive.
The masterplan was prepared jointly by the developer’s advisers and Dublin City Council and was not subjected to strategic environmental assessment. The judge noted that it was cited repeatedly in the inspector’s report and that a planning condition required a contribution towards giving effect to it. He considered that the EU law questions about the plan and mandatory policies were necessary to resolve the case after rejecting the domestic grounds.
The judgment records a proposed reference and directions to prepare it. It does not record a final CJEU ruling or a final order quashing the planning permission.