Introduction

Kerins & Anor v. An Bord Pleanála & Ors (Approved) ([2021] IEHC 369) is a significant judgment delivered by the High Court of Ireland on May 31, 2021. The case involves an application for judicial review brought by Sinead Kerins and Mark Stedman against An Bord Pleanála, Ireland, and the Attorney General, concerning a planning permission granted for a "Build to Rent" development in Dublin's south inner city.

The applicants challenged the board's decision on several grounds, including alleged breaches of domestic planning laws and EU environmental directives. The key issues revolve around the consistency of the development with the Dublin Development Plan, the adequacy of public open space provisions, and the proper transposition and application of EU directives related to environmental assessments.

Summary of the Judgment

Justice Humphreys delivered the judgment, addressing both domestic and EU law issues raised by the applicants. The High Court found that the domestic law grounds presented by the applicants did not warrant the granting of relief. Specifically, the court dismissed claims regarding unlawful consideration of pre-consultation discussions, errors in assessing public open space provisions, and inconsistencies with zoning requirements.

However, regarding EU law matters, the court identified three referrable questions that necessitated clarification from the Court of Justice of the European Union (CJEU). These questions pertained to the interpretation of Directive 2001/42/EC (SEA Directive) and its interaction with national planning policies and guidelines.

Ultimately, the High Court decided to refer these substantive EU law questions to the CJEU for determination, emphasizing the need for authoritative interpretation to ensure consistent application of EU directives within national planning frameworks.

Analysis

Precedents Cited

The judgment references several key precedents that shape the court's approach to planning law and judicial review:

• Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230: This case underscored the necessity for environmental considerations and appropriate assessments to be based on evidence presented to the decision-maker, highlighting that new evidence should not be introduced post-decision.
• Eco Advocacy CLG v. An Bord Pleanála [2021] IEHC 265: This precedent guided the procedural aspects of referring questions to the CJEU, ensuring that the referral aligns with established judicial processes.

These precedents influenced Justice Humphreys' decision to prioritize existing legal standards while recognizing the need for further clarity on EU directives.

Legal Reasoning

The court's reasoning can be dissected into domestic and EU law considerations:

• Domestic Law: The High Court meticulously evaluated each ground presented by the applicants. It found that the board's reliance on a masterplan, even though not subject to Strategic Environmental Assessment (SEA), did not constitute a material breach of the Development Plan. The court also addressed height regulations, open space provisions, and leasing conditions, concluding that the board's decisions were within legal parameters.
• EU Law: The more intricate aspect of the judgment lies in its handling of alleged breaches of EU directives. The applicants contended that national guidelines under Section 28 of the Planning and Development Act 2000 conflicted with Directive 2014/52/EU (EIA Directive) and Directive 92/43/EEC (Habitats Directive). The court identified unresolved interpretative questions regarding the transposition and application of these directives, particularly in relation to masterplans developed jointly by local authorities and private developers.

Recognizing the complexity and the necessity for a cohesive interpretation of EU law, the court exercised its discretion to refer the questions to the CJEU, underscoring the importance of harmonized legal standards within the EU framework.

Impact

This judgment has several potential implications for future cases and the broader field of planning law:

• Clarification of EU Directives: The referral to the CJEU aims to provide definitive interpretations of the SEA and Habitats Directives as they apply to national planning guidelines, ensuring that future developments comply with both national and EU law.
• Planning Authorities' Discretion: The case highlights the balance between mandatory guidelines and discretionary powers of planning authorities, potentially influencing how guidelines are formulated and applied in future planning decisions.
• Judicial Review Processes: By addressing both domestic and EU law aspects, the judgment exemplifies the thorough scrutiny involved in judicial reviews of planning decisions, emphasizing the need for comprehensive legal grounding in such applications.

Complex Concepts Simplified

• Judicial Review: A legal process where courts examine the lawfulness of decisions or actions taken by public bodies, ensuring they comply with statutory and constitutional requirements.
• Strategic Environmental Assessment (SEA): A systematic process for evaluating the environmental impacts of proposed policies, plans, or programs to inform decision-making.
• Material Contravention: A significant breach of planning regulations or policies that can influence the approval or rejection of a development proposal.
• Transposition of EU Directives: The process by which EU directives are incorporated into national law, requiring member states to achieve the directive's objectives within a specified timeframe.
• Referrable Question: A question posed to the CJEU for interpretation of EU law when national courts encounter uncertainties or conflicts in applying directives.

Conclusion

Kerins & Anor v. An Bord Pleanála establishes a crucial intersection between national planning regulations and EU environmental directives. While the High Court upheld the board's decision on domestic grounds, it recognized unresolved issues concerning the proper transposition and interpretation of EU directives, thereby referring pertinent questions to the CJEU. This referral underscores the judiciary's role in ensuring that national laws harmoniously align with overarching EU legal standards, promoting consistency and environmental integrity in urban development. The judgment serves as a precedent for future cases where national planning guidelines intersect with EU directives, highlighting the necessity for clear and consistent legal frameworks to navigate complex environmental and developmental considerations.