The High Court has referred four questions of EU law to the Court of Justice of the European Union in a challenge to planning permission for a 416-home development in Dublin’s south inner city.
In a judgment delivered on 30 November 2021, Mr Justice Humphreys directed the applicants to lodge paper copies of the pleadings for transmission to the EU court and adjourned the rest of the case pending its decision. He did not decide the two remaining grounds of challenge or quash the planning permission at this stage.
Sinead Kerins and Mark Stedman are seeking to overturn An Bord Pleanála’s September 2020 permission for a build-to-rent scheme on the Bailey Gibson site. The permission covers five blocks of between two and 16 storeys, with 416 homes and associated facilities. The board granted permission despite its senior planning inspector recommending refusal.
One ground concerns a masterplan for the wider area, prepared jointly by Dublin City Council and the notice party’s advisers. The plan was not subjected to strategic environmental assessment. The judge had previously concluded that the council adopted it in its public authority and planning authority capacities, and that it envisaged development inconsistent with aspects of the statutory development plan. The permission also imposed a €4,000-per-home contribution towards public open space in the wider masterplan area.
The applicants’ other live ground challenges the statutory requirement for the board to comply with specific planning policy requirements in ministerial guidelines. The guidelines create a presumption in favour of greater building heights in suitable urban locations. The judge said they required permission to remain an available option even where development plan objectives might otherwise rule it out, and considered that their effect could strongly favour granting permission.
The four questions sent to the EU court ask whether the masterplan falls within the EU rules requiring environmental assessment of certain plans and programmes, including where it was jointly prepared with a private developer, was envisaged by a statutory development plan, or set a framework for later development consent. The fourth asks whether EU environmental impact assessment rules preclude authorities from taking account of mandatory government policies that are not based exclusively on environmental criteria.
The judge set out proposed answers to the questions, but the referral seeks the EU court’s ruling. The High Court case will resume after that decision.