SEA “Framework” and Non-Binding ‘Have-Regard’ Guidance: Acte Clair Exclusion and a Standalone Aarhus/Kyiv Interpretive Question in CJEU References

1. Introduction

McDonald and Ors v Minister for Housing, Local Government and Heritage [No.2] [2026] IEHC 66 is a procedural but legally significant ruling of Humphreys J. It arises in judicial review proceedings challenging aspects of national apartment guidelines and, in particular, whether and how the Strategic Environmental Assessment (“SEA”) regime under Directive 2001/42/EC applies.

The ruling does not decide the substantive SEA dispute. Instead, it determines how the High Court will formulate and restructure questions for a preliminary reference to the Court of Justice of the European Union (“CJEU”) under Article 267 TFEU, following submissions invited after the Court’s principal judgment: McDonald v. Minister for Housing (No. 1) [2025] IEHC 728.

Three issues dominate:

  • Whether a proposed question concerning non-SPPR (“non-binding”) guideline text is acte clair (i.e., clear under CJEU law) in favour of the State, such that it should not be referred.
  • Whether any “Aarhus-compliant interpretation” question should also mention the Kyiv Protocol.
  • Whether the “Aarhus-compliant interpretation” point should be (i) deleted, (ii) appended to other questions, (iii) merged, or (iv) posed as an independent standalone question.

The parties are the Applicants (Frank McDonald, Dan Boyle, Pádraig McEvoy, Darragh Moriarty and David Healy) and the Respondent Minister.

2. Summary of the Judgment

The Court holds, in essence, that:

  1. The proposed reference question concerning whether non-binding “have regard” text can amount to a “framework for future development consent” is acte clair against the Applicants, in light of the CJEU’s insistence that only acts “of a mandatory nature” can limit discretion and exclude modalities of implementation (citing NJ and OZ v An Bord Pleanála and Others, C-09/22, ECLI:EU:C:2023:176 (Site de St Teresa's Gardens)).
  2. If an interpretive question referring to the Aarhus Convention proceeds, the Kyiv Protocol should also be referenced because both were approved by Council decision on behalf of the EU and therefore have comparable interpretive relevance.
  3. The “Aarhus-compliant interpretation” issue must be posed as a general independent question (and positioned first); attempts to make it an “afterthought” or to merge it into other questions do not “write” coherently.

Separately, the judgment contains firm guidance on the draft judgment circulation process, its limited purpose, and the confidentiality/non-publication of draft judgments, including an “immediately effective direction” restricting transmission beyond the legitimate purposes of the litigation.

3. Analysis

3.1 Precedents Cited

A. Consultation and iterative decision-making (why questions can change)

The judgment opens with a broader point: consultation is intended to improve decisions, and improved decisions may differ from what was originally contemplated. Humphreys J analogises the evolution of CJEU questions after submissions to the way projects evolve during public participation. The following planning/environmental authorities are cited to support the proposition that consultation can legitimately lead to alteration in the details of a project:

  • Clifford v. An Bord Pleanála (No. 2) [2021] IEHC 642 (Unreported, High Court, 15 October 2021) (para. 12 onwards)
  • Coyne v. An Bord Pleanála [2023] IEHC 412 (Unreported, High Court, Holland J., 21 July 2023) (para. 333 onwards)
  • Eglington Residents Association v. An Bord Pleanála [2025] IEHC 209 (Unreported, High Court, Farrell J., 15 April 2025) (para. 63)

In this procedural setting, the “consultation” is judicial: the Court proposed draft questions in McDonald v. Minister for Housing (No. 1) [2025] IEHC 728 and expressly invited submissions. The No.2 judgment underscores that “subject to submissions” is meaningful: the Court will reassess and rework its approach.

B. CJEU “mandatory nature” threshold and acte clair (the pivot on non-SPPR text)

The State argued the third draft question was unnecessary because the answer was clear from CJEU law. Humphreys J ultimately agrees, relying centrally on:

  • NJ and OZ v An Bord Pleanála and Others, C-09/22, ECLI:EU:C:2023:176 (Site de St Teresa's Gardens): The Court quotes paragraph 50: “Only acts of a mandatory nature are capable of limiting the discretion … and thus of excluding certain modalities … which is why such acts must be subject to an environmental assessment…”. This is treated as determinative: if a measure cannot limit discretion/exclude modalities, it cannot meet the SEA “framework” concept (at least on the strand relevant here).
  • The Minister’s submissions also referenced Case C-321/18, Terre wallonne ASBL (§§42-44) as supporting the distinction between mandatory and purely indicative measures.
  • The State relied on Case C-222/23, Toplofikatsia Sofia (§39) to argue that references cannot be advisory or hypothetical and must be necessary to resolve the dispute.
  • The State additionally relied on Case C 290/15, D'Oultremont (§§39-40, §47) as authority for a broad/teleological reading of the SEA Directive, though (as No.2 indicates) that does not permit readings that contradict clear CJEU limits on what counts as a “framework”.

C. Domestic “have regard” jurisprudence (why non-SPPR text cannot be a “framework”)

The Court reinforces its acte clair conclusion by drawing on a line of Irish authority about what a “have regard” duty entails: it requires consideration, not compliance. The anchor citation is:

  • Cork County Council v. Minister for Housing, Local Government and Heritage [2021] IEHC 683 (Unreported, High Court, 5 November 2021) (at 36)

Humphreys J notes the “have regard” proposition is uncontroversial and widely relied on, citing multiple examples (all of which function as confirmatory support for the same domestic-law meaning of “have regard”):

  • Jennings v. An Bord Pleanála [2022] IEHC 61 (Unreported, High Court, Holland J., 7 February 2022) (paras. 12-17)
  • EPUK Investments Ltd v. Environmental Protection Agency [2023] IEHC 59 (Unreported, High Court, Holland J., 10 February 2023) (para. 413)
  • Coyne v. An Bord Pleanála [2023] IEHC 412 (Unreported, High Court, Holland J., 21 July 2023) (paras. 21 and 32)
  • Concerned Residents of Coolkill, Sandyford Downs and Lamb's Brook v. An Bord Pleanála [2025] IEHC 265 (Unreported, High Court, Holland J., 19 May 2025) (para. 190)
  • Fernleigh Residents Association CLG v. An Coimisiún Pleanála [2025] IEHC 655 (Unreported, High Court, Holland J., 28 November 2025) (at 56)
  • Foran v. An Coimisiún Pleanála & Glenveagh [2026] IEHC 23 (Unreported, High Court, Holland J., 23 January 2026) (at 34)
  • Duffy v. Minister of Housing, OPR & Clare County Council [2026] IEHC 46 (Unreported, High Court, Holland J., 30 January 2026) (at 8)

These authorities matter to the CJEU question because the contested issue is whether the measure is “capable of limiting discretion”. If domestic law characterises the obligation as non-binding, then—absent some other mandatory legal effect—there is nothing to “exclude” any modality of implementation.

D. Draft judgment procedure, fairness, and confidentiality

The judgment contains notable procedural directions on draft judgment circulation. It uses Supreme Court authority to frame the limited nature of iterative procedures:

  • O'Sullivan v. Health Service Executive [2023] IESC 11 (Unreported, Supreme Court, 10 May 2023) (para. 39): cited for the warning against assuming “an entitlement to elaborate procedures at every point”.
  • O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75, [2017] 3 I.R. 751, [2018] 1 I.L.R.M. 245, 780: cited for the caution that lawyers can err by assuming fairness requires procedures approximating a criminal trial.
  • Attorney General v. Crosland (No. 2) [2021] UKSC 58, [2022] 1 W.L.R. 367, [24/01/2022] T.L.R. 1: relied on to justify restrictions on publication of draft judgments as serving the administration of justice.

While not creating a new general rule for all cases, Humphreys J issues an immediately effective direction to the parties (and any person with notice of the draft) restricting transmission and publication of draft judgments, emphasizing their non-public status.

E. International instruments and interpretive context

In considering whether to include the Kyiv Protocol, the Applicants invoked:

  • A and Others C-24/19 (§49) (as quoted in submissions) linking broad interpretation of “plans and programmes” to EU international undertakings, including inter alia Espoo.
  • D'Oultremont and Others v Région Wallonne, C-290/15 (Advocate General opinion excerpted in submissions) discussing the relationship between the SEA Directive and instruments such as Aarhus and the Kiev Protocol.

The Court’s own conclusion is narrower and practical: if an “Aarhus question” is asked, then the Kyiv Protocol should be mentioned too because both have EU-approval status and thus similar potential relevance to interpretive obligations.

3.2 Legal Reasoning

A. Why the non-SPPR “have regard” question becomes acte clair

The Court’s key move is to treat the CJEU’s formulation in Site de St Teresa's Gardens as setting a decisive threshold: a measure only falls within SEA’s “framework” notion (for these purposes) if it is mandatory in a way that limits discretion and thereby excludes certain modalities of implementation.

Against that, the Court characterises non-SPPR guideline text as incapable of meeting the threshold because:

  • Domestic law imposes only a consideration duty (“have regard”), not compliance.
  • A duty to consider does not exclude any implementation option; it does not limit discretion in the manner required by the CJEU.

This is why Humphreys J concludes (para. 20) that the point is “acte clair against the applicants”. A reference on that issue would effectively ask the CJEU to revisit a recent and explicit statement of principle—something the Court suggests would require a particularly solid basis, not present here.

The Court also situates this outcome within a broader reality (para. 22): the SEA Directive is described as “only a partial implementation” of Aarhus, and therefore an Aarhus-oriented policy argument cannot override what the CJEU has held the Directive’s text requires.

B. Why the Aarhus/Kyiv interpretive issue survives—but only as a standalone question

Having removed the non-SPPR question, the Court still sees potential value in an interpretive question about whether Article 3 of the SEA Directive should be interpreted/applied, as far as possible, consistently with participation rights under:

  • Articles 7 and/or 8 of the UNECE Aarhus Convention, and
  • Article 8 of the Kyiv Protocol on Strategic Environmental Assessment.

The critical drafting conclusion is methodological: the Court tried multiple formulations (deletion, appendage, amalgamation, separating “interpretation” from “application”) and found that only one was coherent “on paper”: posing a general interpretive question in its own right (para. 25).

The Court also decides that, once independent, the question “only makes sense as a first question” (para. 25)—a significant sequencing decision. It reflects the idea that interpretive constraints drawn from international law (if any) may set the lens through which the later, more technical “framework” questions are examined.

C. Inclusion of the Kyiv Protocol

The Court’s reasoning is short but clear: the “logic” for mentioning Kyiv mirrors the logic for mentioning Aarhus (para. 23). Both were approved on behalf of the EU by Council decision and therefore share similar status as EU-bound international commitments relevant to interpretive arguments.

D. Draft judgment circulation: disciplined participation and confidentiality

Humphreys J articulates a structured approach to draft judgments:

  • The draft is circulated to identify errors and practical issues, not to re-argue merits.
  • Comments are confined to defined categories (typographical/factual/legal errors; redactions; necessity of addressing points; etc.).
  • Drafts are not public domain materials; publication or wider transmission is restricted.

Although case-specific in form, the direction reflects a broader judicial concern: preserving the integrity of the adjudicative process and preventing premature dissemination of tentative texts.

3.3 Impact

A. SEA litigation: narrowing “framework” arguments where guidance is non-binding

The most practically important implication is the Court’s firm statement that non-binding “have regard” guidance is, in light of Site de St Teresa's Gardens, not apt to qualify as a “framework” because it does not exclude options or limit discretion.

In future SEA challenges in Ireland, applicants may face a steeper threshold when attempting to bring non-mandatory policy text within the SEA net. Conversely, the State (and planning authorities) can be expected to deploy this reasoning to argue that SEA obligations are primarily triggered by measures with mandatory content (e.g., binding requirements such as SPPRs), rather than advisory or “have regard” material.

B. CJEU reference practice: iterative drafting and “questions that write”

The decision is also instructive about how references are crafted:

  • Inviting submissions on proposed questions is meaningful; questions can and should evolve.
  • If an interpretive meta-question is truly in play, it may need to be framed cleanly and independently, rather than bolted onto other questions.

This may encourage more disciplined drafting in future references, separating (i) interpretive methodology questions from (ii) application questions about particular instruments or provisions.

C. International environmental law as an interpretive lens

By insisting that the Kyiv Protocol should be included if Aarhus is included, the Court signals that, at least at the level of reference-question formulation, it treats EU-approved environmental participation instruments as potentially relevant context—while also warning (para. 22) that such context cannot be used to contradict clear CJEU readings of the Directive’s text.

D. Draft judgments: confidentiality and controlled engagement

The strong confidentiality direction may be cited in future Irish proceedings to justify restrictions on dissemination of draft judgments and to maintain the disciplined, error-correction purpose of the draft circulation process.

4. Complex Concepts Simplified

  • SEA (Strategic Environmental Assessment): an assessment required for certain plans/programmes likely to have significant environmental effects, performed before adoption, under Directive 2001/42/EC.
  • “Framework for future development consent” (SEA Directive): a plan/programme can trigger SEA if it sets conditions that shape later project approvals. The CJEU case law emphasises whether the measure is mandatory and can limit discretion by excluding certain implementation options.
  • SPPR vs non-SPPR text: SPPRs are binding planning policy requirements. Non-SPPR text is guidance that decision-makers may have to consider but are not legally bound to follow.
  • “Have regard” obligation: a statutory duty to take something into account. It does not, without more, mean the authority must comply with the guidance.
  • Acte clair: an EU law doctrine meaning the answer is so clear that a national court need not (and generally should not) refer the question to the CJEU.
  • Article 267 TFEU reference: the mechanism by which national courts ask the CJEU to interpret EU law where necessary to decide a case.
  • Aarhus Convention / Kyiv Protocol: international environmental law instruments on access to information and public participation (Aarhus) and SEA participation norms (Kyiv), which may influence how EU environmental legislation is interpreted where the EU is a party/has approved the instrument.

5. Conclusion

[2026] IEHC 66 clarifies, for the purposes of shaping a CJEU reference in SEA litigation, that non-binding “have regard” guidance cannot readily be treated as a SEA-triggering “framework for future development consent” where it does not limit discretion or exclude implementation modalities—an issue the Court deems acte clair in light of Site de St Teresa's Gardens.

It also establishes a pragmatic approach to reference-question architecture: an international-law-compliance argument (Aarhus/Kyiv) either proceeds as a standalone interpretive question—and, if so, should sensibly come first—or it should not proceed at all. Finally, the judgment offers concrete procedural guidance on the disciplined use and confidentiality of draft judgments, emphasising efficient and fair decision-making without procedural over-elaboration.