Apartment Design Guidelines as Potential SEA “Frameworks”: Commentary on McDonald & Ors v Minister for Housing [2025] IEHC 728

Apartment Design Guidelines as Potential SEA “Frameworks”:
Commentary on McDonald & Ors v Minister for Housing, Local Government and Heritage [2025] IEHC 728

1. Introduction

This judgment of Humphreys J in the High Court of Ireland does not finally decide the legality of the 2025 Design Standards for Apartments Guidelines (“the Apartment Guidelines”). Instead, it performs two important functions:

  • It resolves key pleading and admissibility issues in a high‑profile environmental judicial review; and
  • It frames and sends a set of carefully calibrated questions to the Court of Justice of the European Union (CJEU) under Article 267 TFEU on the scope of Directive 2001/42/EC (the Strategic Environmental Assessment or “SEA” Directive).

At the core lies a novel and sensitive question for EU environmental law and Irish planning law: do binding technical standards on internal apartment design – such as minimum unit sizes, dual-aspect requirements, ceiling heights, and communal facility rules – “set the framework for future development consent” so as to require SEA under Article 3(2)(a) of the SEA Directive?

The judgment is also significant because:

  • It tests the limits of the CJEU’s increasingly sophisticated case law on what counts as a “plan or programme” and a “framework” for development consent.
  • It brings the Aarhus Convention’s provisions on public participation (Articles 7 and 8) into sharp focus as interpretative aids for the SEA Directive.
  • It clarifies, for Irish practice, the consequences of deficient pleadings in environmental judicial review and the treatment of expert evidence on environmental impacts.

What follows is an analysis of the factual background, the structure and outcome of the judgment, and its wider implications for SEA jurisprudence, Irish planning practice, and participatory environmental governance.

2. Factual and Procedural Background

2.1 The impugned Apartment Guidelines and SPPRs

On 8 July 2025 the Minister issued the Design Standards for Apartments, Guidelines for Planning Authorities under s.28 of the Planning and Development Act 2000. These guidelines contain both:

  • “Have-regard-to” narrative text; and
  • Specific Planning Policy Requirements (SPPRs) adopted under s.28(1C), with which planning authorities and An Bord Pleanála must comply.

The SPPRs regulate, among other matters:

  • SPPR 1 – removal of minimum or maximum bedroom mix requirements (save for certain social / older persons housing);
  • SPPR 2 – minimum apartment floor areas (e.g. 32 m² for studios, 45 m² for 1-bed, etc.) with a prohibition on plans prescribing larger minima;
  • SPPR 3 – minimum proportion of dual-aspect apartments (25%, with limited discretion to go lower in small infill or refurbishment schemes);
  • SPPR 4 – ground-floor ceiling heights (2.7 m, with limited discretion);
  • SPPR 5 – prohibition on minimum units-per-core requirements;
  • SPPR 6 – limits on mandatory communal/community facilities;
  • SPPR 7 – presumption against new co‑living/shared accommodation save where justified by a Housing Need and Demand Assessment (HNDA);
  • SPPR 8 – detailed space standards for purpose-built student accommodation.

Crucially, by virtue of s.28(1C) these SPPRs override any inconsistent provisions in development plans. Irish development plans are themselves subject to SEA (s.10(5A) P&D Act 2000 and the 2004/2011 SEA Regulations). Thus, the SPPRs disapply elements of SEAd plan-based frameworks and substitute nationally mandated design standards.

2.2 The applicants’ complaints and AIE requests

The applicants – a group of prominent environmental and planning figures, including councillors and former policymakers – argue that the Apartment Guidelines:

  • are “plans or programmes” under Article 2(a) SEA Directive; and
  • “set the framework for future development consent” of Annex II EIA projects (urban development projects) under Article 3(2)(a);
  • and thus should have been subject to SEA (including public consultation) before adoption.

Immediately following publication, they and others pursued Access to Information on the Environment (AIE) and Freedom of Information (FOI) requests, which disclosed, inter alia:

  • An internal departmental report (12 June 2025) by the Environmental Planning Manager concluding that an SEA was not required, as the guidelines did not set the “framework” for development consent.
  • Parliamentary answers from the Minister confirming that no SEA or SEA screening had been carried out because the guidelines were considered to fall outside Article 3 SEA.

2.3 Proceedings and interlocutory history

The applicants commenced judicial review on 3 October 2025 seeking, in substance:

  1. Certiorari quashing the Apartment Guidelines;
  2. A declaration that SEA under Article 3(2)(a) SEA Directive and transposing measures was required;
  3. Protective costs relief under the Aarhus-related provisions (s.50B P&D Act 2000, Environment (Miscellaneous Provisions) Act 2011, etc.); and
  4. Ancillary relief, including interim stay (not decided in this judgment).

The case proceeded on an expedited basis. The Minister, while “strictly without prejudice” to his defence, indicated a pragmatic intention to replace the guidelines with a National Planning Statement under s.25 of the Planning and Development Act 2024. However, the State continued to defend the lawfulness of the guidelines and, importantly, objected to aspects of the applicants’ case as beyond the pleadings.

After leave was granted and substantial affidavit evidence (including expert reports) was filed, the court heard substantive argument on 4 December 2025 and reserved judgment, ultimately issuing this judgment for reference on 17 December 2025.

3. Summary of the Judgment

3.1 Outcome in brief

The High Court:

  • Resolves preliminary pleading issues largely in favour of the State, holding that the applicants are confined to a challenge under Article 3(2)(a) (framework for future development consent) and cannot rely on:
    • Article 3(3) screening (plans for small areas / minor modifications), or
    • a freestanding argument based on likely “significant environmental effects” not pleaded.
  • Declines to determine whether the guidelines require SEA as a matter of EU law, and instead:
    • Concludes that the central questions involve unresolved and non‑acte‑clair issues of EU law; and
    • Decides to refer four specific questions to the CJEU under Article 267 TFEU.
  • Preserves the guidelines in force pending the CJEU ruling; no suspension or annulment is ordered at this stage.

3.2 The four questions to the CJEU

Humphreys J proposes to refer (in substance) the following issues:

  1. Technical design standards as SEA “frameworks”
    Do binding legal requirements like the SPPRs – which affect internal apartment design, unit numbers within a given building and knock-on external appearance, but not (directly) project location, overall building size, operating conditions or funding – amount to a “framework for future development consent” under Article 3(2)(a) SEA Directive?
  2. Derogations from SEAd plans
    If the answer to (1) is no, do such requirements nonetheless form an SEA “framework” where they derogate from or disapply provisions of development plans which were required to, or in fact did, undergo SEA?
  3. Binding vs “have-regard-to” measures
    Does Article 3(2)(a)’s “framework” notion exclude plans that domestic law makes merely “have-regard-to” (obligatory consideration) rather than obligatorily complied with? In other words, must the content be strictly legally binding on consent authorities, or is a binding duty to consider enough?
  4. Interaction with the Aarhus Convention
    Should Article 3 SEA be interpreted and/or applied by Member States and competent authorities so as to comply to the fullest extent possible with Articles 7 and/or 8 of the Aarhus Convention (public participation in plans/programmes and environmental rule‑making), in relation to the above questions?

Alongside this, the judgment sets out detailed procedural directions to implement the reference and to allow potential amici curiae to participate.

4. Legal Framework

4.1 The SEA Directive

Key provisions of Directive 2001/42/EC highlighted by the court include:

  • Article 1 – SEA aims at a high level of environmental protection and integration of environmental considerations into plans and programmes that are likely to have significant effects.
  • Article 2(a) – “Plans and programmes” are those:
    • prepared and/or adopted by national, regional or local authorities, and
    • required by legislative, regulatory or administrative provisions.
  • Article 3(1) – SEA is required for plans and programmes referred to in paras 2–4, which are likely to have significant environmental effects.
  • Article 3(2)(a) – Systematic SEA is required for all plans and programmes:
    • prepared for certain sectors (including “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 the EIA Directive.
  • Article 3(3) – Plans determining use of small areas at local level, or minor modifications to plans, require SEA only where Member States determine they are likely to have significant environmental effects.
  • Article 3(4)–(5) – Member States must also determine whether other framework‑setting plans not covered by 3(2) have significant environmental effects, using screening criteria in Annex II.
  • Recitals 10–12 – emphasise:
    • that plans which set frameworks for Annex I/II projects are, as a rule, likely to have significant effects and thus “should as a rule be made subject to systematic environmental assessment”; and
    • that delimiting provisions of the Directive should be interpreted broadly to ensure high environmental protection.

The judgment accepts that the case “hinges on the single aspect” whether the Apartment Guidelines set such a framework under Article 3(2)(a).

4.2 Irish planning law: s.28 guidelines and development plans

Domestically, the crucial provisions are:

  • Section 10(5A) P&D Act 2000 – requires SEA of draft development plans “where required”, a requirement that in practice has applied to all Irish development plans, which deal with zoning and other land use issues.
  • Section 28 P&D Act 2000 (now repealed for the future but applicable at the material time):
    • Sub-s.(1): the Minister “may, at any time, issue guidelines to planning authorities”, which they must “have regard to”.
    • Sub-s.(1A)–(1B): development plans must include a statement demonstrating how they implement or, where justified, depart from such guidelines.
    • Sub-s.(1C): guidelines may contain “specific planning policy requirements” (SPPRs) with which planning authorities and the Board shall comply.
    • Sub-s.(1D): “A strategic environmental assessment or an appropriate assessment shall, as the case may require, be conducted in relation to a draft of guidelines proposed to be issued under subsection (1).”

Thus, while labelled “guidelines”, instruments issued under s.28 can be:

  • Binding SPPRs that effectively override development plans; and
  • accompanied by soft‑law narrative text which planning authorities must seriously consider.

The Sustainable Residential Development and Compact Settlements Guidelines (January 2024) and the earlier Urban Development and Building Height Guidelines (2018) form part of this ecosystem of national policy instruments that interact with SEAd development plans in determining detailed planning outcomes.

5. Precedents Cited and Their Influence

The judgment contains an extensive survey of CJEU case law on the SEA Directive. Only the most salient strands are highlighted here, with a focus on how they shape the questions now referred.

5.1 “Plans and programmes” and the concept of “required”

  • Inter‑Environnement Bruxelles (2012) C‑567/10 and A & Others (Wind turbines at Aalter and Nevele) (2020) C‑24/19
    The CJEU held that a plan or programme is “required” if its adoption is regulated by national legislation determining:
    • who may adopt it; and
    • the procedure for adopting it.
    Even if adoption is not formally compulsory, such measures are “required” for SEA purposes. This prevents Member States from circumventing SEA simply by framing instruments as discretionary.
  • Friends of the Irish Environment (2024) C‑727/22
    The Court recently refined this: a measure adopted solely under a general constitutional executive power, with no specific legislative basis, is not “required by legislative, regulatory or administrative provisions” and thus falls outside Article 2(a).
    Humphreys J uses this to underscore that s.28 guidelines, which are founded on detailed statutory provisions, fall within the “required” limb of the SEA definition.

5.2 What is a “framework for future development consent”?

The central interpretive battle concerns what degree and type of normativity is needed for a plan/programme to “set the framework” for future consents. The CJEU and its Advocates General have over time refined this notion:

  • AG Kokott in Terre wallonne (Opinion, 2010)
    She proposed a broad, functional conception of “framework”:
    • the term must reflect the objective of taking account of environmental effects at the earliest stage;
    • attempts by some Member States to limit “framework” to determinations of location, nature, or size were expressly rejected during the Directive’s drafting;
    • “framework” should be construed flexibly, covering any decisions that influence subsequent development consents, including through resource allocation or operating conditions.
  • Terre wallonne & Inter‑Environnement Wallonie (2010) C‑105/09 & C‑110/09
    The Court applied this logic, holding that agricultural action programmes under the Nitrates Directive, containing binding measures such as manure application limits, set the framework for future consents of Annex I/II projects and thus fell under Article 3(2)(a).
  • D’Oultremont (2016) C‑290/15
    A pivotal case: a Walloon order setting technical, noise, safety and restoration standards for wind farms was held to be a plan/programme because it:
    • concerned the energy sector; and
    • defined a “significant body of criteria and detailed rules” for the grant and implementation of wind farm projects (Annex II EIA projects).
    The Court stressed that SEA scope must be interpreted broadly and warned against “splitting” measures to avoid SEA obligations.
  • Inter‑Environnement Bruxelles (2018) C‑671/16
    Regional zoning regulations for the “European Quarter” in Brussels, which set detailed height, massing and open space rules, were also held to set the framework for development consent. The Court reaffirmed the “significant body of criteria and detailed rules” test and emphasised a qualitative rather than quantitative approach.
  • Thybaut (2018) C‑160/17
    A decree defining an “urban land consolidation area” where planning permissions could derogate from existing rules was held to be a plan/programme because:
    • by facilitating systematic derogation, it altered the legal “framework” for projects; and
    • derogations from existing SEAd frameworks can themselves trigger SEA obligations.
  • Bund Naturschutz (2022) C‑300/20
    This Grand Chamber ruling is central to the present Irish reference. It held that a Bavarian landscape protection regulation:
    • did not set a framework, despite requiring permits, because it imposed only general prohibitions and a single broad condition (“no adverse effect on the landscape”);
    • did not lay down a “significant body of criteria and detailed rules” for a sufficiently defined class of Annex I/II projects.
    This decision marks a limiting counterweight to the earlier expansive case law and underpins the State’s argument that the Apartment Guidelines, while binding, are too “internal” and narrow to count as a “framework”.

5.3 Modifications, derogations and hierarchies of plans

  • Inter‑Environnement Bruxelles (2012) and Dimos Kropias Attikis (2015) C‑473/14
    The Court held that modifications or repeals of existing plans can also be “plans or programmes” because they alter legal reference frameworks and may change environmental effects. That applies especially where the original plan was not SEAed.
  • CFE (2019) C‑43/18 and Terre wallonne (2019) C‑321/18
    Conversely, where measures:
    • deal only with Natura 2000 conservation objectives or protection regimes; and
    • have merely indicative value or lay down no “significant body” of detailed criteria for Annex I/II projects;
    they may fall outside Article 3(2)(a) and 3(4).
  • Thybaut (again)
    Demonstrates that changes which relax existing SEAd frameworks by creating easier derogation mechanisms can themselves be SEA “plans/programmes”.
  • St Teresa’s Gardens (NJ & OZ) (2023) C‑9/22
    This Irish reference concerned a site-specific masterplan approved under the Dublin City Development Plan and high‑rise building guidelines. The CJEU held that:
    • A plan comes within the SEA Directive if it is prepared by an authority, adopted under a legal basis within a hierarchy of plans, and envisages distinct development; provided it is at least binding on the authority granting consent.
    • Measures that are merely indicative and not binding on the consent authority will not qualify.
    The case underscores the importance of binding legal effect – a point directly taken up by Humphreys J in Question 3 of his reference.

5.4 Aarhus Convention and procedural environmental rights

The judgment also cites:

  • Seaport (Opinion and judgment, 2011, C‑474/10) – emphasising that consultation under Article 6 SEA Directive enshrines public participation rights parallel to those in the Aarhus Convention.
  • Academic commentary (Vomáčka, 2025) – advocating an extensive, Aarhus‑consistent interpretation of “plans and programmes” and “framework”, to ensure no circumvention of participation and assessment obligations.

Humphreys J stops short of holding that Aarhus Articles 7 and 8 are directly enforceable in Irish law, but he expressly raises with the CJEU whether Article 3 SEA should be interpreted, and applied by Member States, so as to ensure maximum conformity with those Aarhus obligations.

6. The High Court’s Legal Reasoning

6.1 Pleading objections and their consequences

The State argued that the applicants had gone beyond their pleaded grounds in several ways. The court’s handling of this is important for Irish environmental litigation practice.

The applicants’ core pleaded case (sub‑grounds 15–23) is that:

  • The Apartment Guidelines themselves set the framework for future development consent of Annex I/II projects (urban development projects including apartment schemes) because they impose binding criteria and conditions on projects; and/or
  • By introducing SPPRs that override development plan provisions (which were SEA‑assessed), they enact a derogation from existing SEA frameworks akin to that considered in Thybaut.

However, the court finds that:

  • The applicants did not plead:
    • that the guidelines should have been subjected to screening under Article 3(3), as distinct from full SEA under Article 3(2)(a); or
    • that the guidelines require SEA because they are likely to have significant environmental effects in their own right (as opposed to because they set a “framework”).
  • The extensive expert affidavit evidence on environmental effects (e.g. density, daylight, micro‑climate, energy use) was explicitly presented as the material the applicants would have put into an SEA consultation, not as proof of a pleaded “significant effects” ground.

Accordingly, at paras 44–48, the court holds that:

  • The applicants are confined to their pleaded case based on Article 3(2)(a);
  • They cannot now rely on Article 3(3) or re‑characterise their expert evidence as going to unpleaded “significant effects” grounds; and
  • The preliminary issues on pleadings are resolved “generally … in favour of the State”.

This is a pointed reminder that in Irish judicial review, particularly in technical EU environmental law cases, precision of pleading is critical. Practitioners must explicitly plead reliance on Article 3(3) screening, or likely significant effects, if they wish to deploy environmental impact evidence as a substantive basis for SEA obligations.

6.2 Characterisation of the Apartment Guidelines and SPPRs

Within the constrained pleaded case, the court identifies the “kernel” of the applicants’ argument (paras 115–117):

  1. The guidelines “contain criteria and conditions (including the characteristics and size, operating conditions and allocation of resources) that future development consents must be consistent with”; and
  2. The SPPRs derogate from or override development plan provisions which were required to be, and were in fact, subject to SEA.

The Minister does not contest that:

  • The SPPRs are binding on planning authorities and the Board; and
  • They directly shape the design of apartment and student housing projects and thus the projects’ environmental footprint (number of units, daylight, ventilation, etc.).

Rather, the State’s position is that:

  • The SPPRs concern only internal design parameters of housing schemes – they do not regulate:
    • project location;
    • overall building or scheme scale;
    • macro‑level density, transport, or resource allocation; or
    • infrastructure siting.
  • Those broader planning parameters are set by development plans, density guidelines, and other SEAd instruments.
  • Therefore, applying the Bund Naturschutz “significant body of criteria and detailed rules” test, the SPPRs do not amount to a framework for future development consent.

Humphreys J does not decide this dispute. Instead, after reviewing the dense CJEU jurisprudence and academic commentary, he identifies several “pinch points” (para 119):

  1. Should Article 3 SEA be interpreted in conformity with Aarhus Articles 7 and 8 “to the maximum extent possible”?
  2. What is the legal status, for SEA purposes, of non‑binding but “have‑regard‑to” guideline text?
  3. Do guidelines about design alone come within Article 3(2)(a) when they affect internal apartment configuration and unit count but not location or macro‑size?
  4. Even if not, do such guidelines fall within Article 3 because they derogate from SEAd development plan frameworks?

The fact that there is no CJEU authority “directly in point” on these questions, coupled with the potential for conflicting readings of D’Oultremont, Inter‑Environnement Bruxelles, Thybaut, and Bund Naturschutz, leads the court to conclude that the SEA issues are not acte clair.

6.3 Domestic law nuances: s.44B P&D Act and legislative change

The applicants sought to rely on the (then uncommenced) s.44B P&D Act 2000, inserted by the 2025 Amendment Act, which would allow “permitted modifications” to extant residential permissions, including modifications to comply with certain SPPRs, to be certified administratively. They argued this underlined the guidelines’ role in setting a development consent framework.

The court rejects reliance on s.44B (paras 114–115):

  • It was not in force at the date of the guidelines and thus cannot affect whether the guidelines, when adopted, required SEA.
  • However, Humphreys J notes in obiter that:
    • a legislative change that later causes an existing plan to fall within the SEA regime cannot be used to circumvent SEA obligations; and
    • if a change in the legal context would turn a previously non‑SEA plan into one requiring SEA, compliance must occur at or before the change takes effect.

This is a subtle but important warning: Member States cannot avoid SEA by adopting a plan in a legal environment where SEA is arguably not required, and then later enacting legislation that enhances the plan’s binding effect or planning significance. At that later point, EU law may generate a fresh SEA obligation.

6.4 Aarhus Convention dimension

Humphreys J openly acknowledges (para 118) that:

  • Aarhus rights (particularly Articles 7 and 8) are not directly incorporated into Irish law save to the extent they are mediated via EU instruments such as the SEA Directive.
  • The court’s role in directly policing Aarhus compliance is limited; the Aarhus Compliance Committee is the primary enforcement forum.
  • Nonetheless, he expresses “concerns” about whether sufficient account was taken of Aarhus obligations in adopting the guidelines, and emphasises that pacta sunt servanda should prompt the State to comply fully with its international commitments.

Instead of deciding the Aarhus issue, he uses Question 4 of the reference to invite the CJEU to clarify whether:

  • Article 3 SEA must be interpreted, and applied by national authorities, so as to give full practical effect to Aarhus’s requirements for:
    • public participation in plans and programmes related to the environment (Article 7); and
    • participation in the preparation of generally applicable environmental regulations (Article 8).

If the CJEU answers that SEA must be read so as to “maximise” alignment with Articles 7 and 8, this could significantly tilt the interpretative balance in favour of treating instruments like technical national planning guidelines as SEA‑triggering “plans or programmes”.

6.5 Draft judgments and procedural safeguards

The judgment also reiterates the judge’s practice of circulating draft judgments to parties, under strict confidentiality, for the limited purpose of correcting non‑substantive errors (paras 31–38). He cites O’Sullivan v HSE and the UK Supreme Court’s AG v Crosland (No. 2) to emphasise that:

  • Draft judgments are not public domain documents and must not be disseminated beyond the litigation context;
  • They are not an opportunity to re‑argue the merits; and
  • The procedure is a “concession” that relies on discipline and focus from the parties.

While not central to the SEA issue, this procedural commentary signals an increasingly structured approach to judgment finalisation in complex planning and environmental litigation.

7. Complex Concepts Simplified

7.1 SEA vs EIA

  • Environmental Impact Assessment (EIA) (Directive 2011/92/EU) assesses the effects of specific projects – e.g., a particular apartment block or road.
  • Strategic Environmental Assessment (SEA) assesses the effects of plans and programmes – e.g., development plans, sectoral strategies, or binding technical regimes – before they are adopted, to ensure environmental considerations and public participation inform higher‑level decision‑making.

SEA is about upstream strategic choices; EIA is about downstream concrete projects. The CJEU has repeatedly held that SEA obligations cannot be sidestepped by relying solely on project‑level EIA.

7.2 What is a “plan or programme”?

Under Article 2(a) SEA, a “plan or programme” must:

  1. Be prepared and/or adopted by an authority (or prepared for adoption by Parliament/Government through a legislative procedure); and
  2. Be “required” by legislative, regulatory or administrative provisions, in the sense that:
    • its adoption is regulated (there is a legal basis, procedure and competent authority), even if not strictly mandatory (Inter‑Environnement Bruxelles, A & Others); but
    • it is not merely based on a generic constitutional executive power with no specific legal framework (FIE).

Irish s.28 guidelines clearly meet this “required” test: their issuance, content, bindingness and interaction with development plans are all precisely regulated by statute.

7.3 What is a “framework for future development consent”?

This is the central concept in Article 3(2)(a). In plain terms, a measure sets such a framework if it:

  • Establishes – by binding rules and criteria – how future decisions on planning permission or other consents will be made for certain classes of projects; and
  • Does so in a sufficiently substantive and structured way that it shapes the environmental effects of those projects.

The CJEU has crystallised this as the existence of a:

“significant body of criteria and detailed rules for the grant and implementation of one or more projects likely to have significant effects on the environment”.

The debate in McDonald is whether:

  • Apartment design SPPRs – concerned with floor areas, dual aspect, ceiling heights, etc. – are a “significant body” of rules, akin to the technical standards for wind farms in D’Oultremont; or
  • They are too narrow and “internal” to be a framework, more akin to the general landscape protection ordinance in Bund Naturschutz which did not contain detailed criteria for specific Annex I/II projects.

7.4 Screening vs full SEA

Article 3 distinguishes between:

  • Automatic SEA (Article 3(2)(a) & (b)) – where certain plans/programmes (including town and country planning frameworks for Annex I/II projects) must always be SEAed; and
  • Screening for SEA (Article 3(3) & (4)) – where Member States decide, using Annex II criteria, whether plans:
    • for small areas at local level or minor modifications; or
    • frameworks for non‑Annex I/II projects;
    are “likely to have significant environmental effects” and must undergo SEA.

In McDonald, the High Court confines itself to Article 3(2)(a) because the applicants did not plead a screening‑based Article 3(3) case. However, the State’s arguments about the limited scope of the SPPRs implicitly engage with the logic of screening: if the internal design rules have no significant effects, they might not even require SEA screening.

7.5 Binding vs indicative measures

SEA attaches only to measures that genuinely constrain future decisions:

  • Binding measures (laws, regulations, SPPRs) which authorities must apply in granting or refusing permission usually count as frameworks.
  • Indicative or non‑binding guidance, recommendations, or aspirational plans generally do not, unless domestic law in substance treats them as mandatory for consent authorities.

The CJEU in St Teresa’s Gardens and A & Others emphasised that only acts of a mandatory nature can “limit the discretion” of consent authorities to the extent that SEA is triggered. Humphreys J’s third question squarely asks the CJEU whether a mere duty to “have regard to” is enough, or whether only “comply with” obligations suffice.

8. Likely Impact and Future Developments

8.1 Consequences for Irish planning practice

Pending the CJEU’s ruling, the Apartment Guidelines remain in force. Nevertheless, the judgment’s implications are immediate:

  • Risk to other s.28 guidelines. If the CJEU holds that design‑oriented SPPRs are SEA “frameworks”, many existing and future s.28 guidelines (building heights, density, compact settlements, etc.) might require SEA (or, if already adopted without SEA, face vulnerability to challenge).
  • Drafting and SEA practice. The Department will likely approach future national planning instruments more cautiously, either:
    • subjecting them to SEA (and public consultation) by default; or
    • crafting them in explicitly non‑binding, high‑level terms to minimise SEA risk – though that may undercut policy effectiveness.
  • Pleading discipline for litigants. Environmental NGOs and individuals must plead SEA grounds meticulously:
    • distinguishing Article 3(2) “framework” arguments from Article 3(3)/(4) screening and “significant effects” claims; and
    • explicitly tying expert impact evidence to pleaded legal bases.

In practical terms, if the CJEU ultimately finds that:

  • The Apartment Guidelines required SEA, Irish courts will have to consider remedial options under the Inter‑Environnement Wallonie / A & Others line:
    • annulment,
    • suspension, or
    • exceptional temporary maintenance of effects for reasons such as housing supply, with strict temporal limits.
  • The guidelines did not require SEA, the Department’s internal conclusion will be vindicated, but the boundaries of “framework” and “derogation” will be clearer for future instruments.

8.2 Influence on EU SEA jurisprudence

The reference presents the CJEU with an opportunity to refine its SEA case law in several ways:

  1. Technical design standards across sectors
    If apartment design SPPRs are held to be frameworks, that logic is likely to extend beyond housing to:
    • technical building codes;
    • sectoral design handbooks (e.g. for roads, flood defences, energy infrastructure); and
    • other nationwide “standards” that shape environmental outcomes without allocating land or dictating project locations.
  2. Limiting or expanding Bund Naturschutz
    The Court may clarify whether Bund Naturschutz is:
    • a narrow carve‑out for very general protection regimes with little project‑specific detail; or
    • a more general constraint, signalling that not every binding environmental rule is a SEA “framework”.
  3. Derogation logic from Thybaut
    The questions explicitly ask whether a measure that relaxes or derogates from SEAd development plan standards can itself be a framework even if, taken in isolation, its contents would not themselves require SEA.
  4. Aarhus‑conform interpretation
    Question 4 invites the CJEU to speak directly to the relationship between SEA and Aarhus Articles 7–8. A strong answer here could:
    • anchor SEA as a primary EU‑level vehicle for implementing Aarhus participation guarantees in planning and environmental rule‑making; and
    • encourage more generous, participation‑focused readings of what counts as a “plan or programme”.

8.3 Housing policy, environmental governance and legitimacy

Substantively, the case sits at the fault line between:

  • the State’s attempt to accelerate apartment construction, increase yields, and standardise design in response to an acute housing crisis; and
  • environmental and community concerns about urban liveability, micro‑climate, and long‑term sustainability (light, air, green space, etc.).

SEA – with its requirement of early public participation – is designed to ensure that:

  • such high‑stakes trade‑offs are debated before guidelines are finalised; and
  • environmental knowledge and local perspectives shape the policy choices embedded in seemingly “technical” design standards.

Regardless of the CJEU’s eventual legal answer, the litigation underscores that:

  • Apartment design rules are not value‑neutral: they profoundly affect the environmental quality of urban living and resource use.
  • Embedding SEA and Aarhus‑style participation in the formation of such rules can enhance their legitimacy and robustness, even if they are ultimately upheld.

9. Conclusion: Significance of the Judgment

McDonald & Ors v Minister for Housing is less about a definitive ruling on the Apartment Guidelines than about framing the next chapter of SEA law in Europe and Ireland.

Key takeaways include:

  • The High Court confirms that binding national planning guidelines with SPPRs are potentially within the SEA Directive’s ambit as “plans or programmes”, but whether they “set the framework” remains an open and contested question.
  • By sending four targeted questions to the CJEU, the court spotlights unresolved tensions in EU case law between a broad, Aarhus‑consistent interpretation of SEA scope and more recent limiting decisions, especially Bund Naturschutz.
  • The judgment tightens pleading discipline in environmental judicial review, limiting applicants to well‑articulated SEA theories and underscoring that expert environmental evidence must be anchored in clearly pleaded legal grounds.
  • The Aarhus Convention, while not directly enforceable domestically beyond EU mediation, hovers in the background as a normative compass for interpreting SEA – a point now squarely before the CJEU.

Ultimately, the case illustrates how apparently technical policy instruments – national apartment design standards – can crystallise fundamental questions about:

  • who decides the environmental qualities of urban life,
  • at what stage of the decision chain environmental assessment and public participation are required, and
  • how far EU environmental law extends into the detailed architecture of domestic planning frameworks.

The CJEU’s response to the McDonald reference will not only determine the fate of the current Apartment Guidelines, but will also set important markers for the future design, assessment and democratic legitimacy of planning regimes across the European Union.

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