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McDonald and Ors v Minister for Housing, Local Government and Heritage [No.2] (Approved)
Factual and Procedural Background
This is a planning and environment judicial review proceeding brought by the Applicants against the Respondent (the Minister). The impugned decision dated 8 July 2025 gave rise to proceedings commenced 3 October 2025. A principal judgment was delivered on 17 December 2025 and a draft judgment was circulated on 4 February 2026. Judge Humphreys delivered the judgment summarized here on 10 February 2026.
The court had earlier (in a No. 1 judgment) proposed four questions for reference to the Court of Justice of the European Union (CJEU) concerning the scope and application of Directive 2001/42/EC (the SEA Directive) in relation to apartment design standards, the effect of guidelines that derogate from plans subject to SEA, whether non-SPPR (non-special planning policy requirement) text can constitute a "framework for future development consent", and whether Article 3 of the SEA Directive should be interpreted in an Aarhus-compliant manner (with a possible reference to the Kyiv Protocol). The court invited submissions on those draft questions, received detailed submissions from the Respondent and the Applicants, considered those submissions and reconfigured the questions to be referred. The court circulated drafts to parties for limited comment; no substantive comments were received and minor corrections were made by the Applicants.
Legal Issues Presented
- Whether provisions that are not of a mandatory nature (non-SPPR text or "have-regard" obligations) fall within the notion of a "framework for future development consent" under Article 3(2)(a) of Directive 2001/42/EC.
- Whether a plan that derogates from other plans that were subject to assessment under the SEA Directive falls within the notion of a framework for future development consent.
- Whether the notion of a framework for future development consent excludes a plan where domestic law requires competent authorities to consider but not to comply with that plan (i.e., the non-SPPR / have-regard issue).
- Whether Article 3 of the SEA Directive should be interpreted and/or applied so as to comply, to the fullest extent possible, with Articles 7 and/or 8 of the Aarhus Convention and/or Article 8 of the Kyiv Protocol (an Aarhus/Kyiv-related interpretative question), and whether that should be an independent question for reference.
- Whether any of the above require referral to the CJEU or are acte clair such that referral is unnecessary.
Arguments of the Parties
Respondent's Arguments
- The Respondent argued that Question 3 (non-SPPR / non-mandatory text) should be answered in the Respondent's favour as acte clair, relying on CJEU authority (Case C-321/18, Terre wallonne ASBL; Case C-09/22 St Teresa's Gardens) that only acts of a mandatory nature can limit competent authorities' discretion and thus constitute a framework requiring SEA.
- The Respondent submitted that Question 4 (Aarhus-compliant interpretation) was unnecessary to refer because a reference must be necessary for effective resolution of the dispute (citing Case C-222/23, Toplofikatsia Sofia) and the Applicants had not shown how the answer to that question would affect resolution; the CJEU jurisprudence requires a broad interpretation of Article 3(2)(a) in light of the Directive's objective (citing Case C-290/15, D'Oultremont).
Applicants' Arguments
- The Applicants contended that a plan statutorily required to be considered by a competent authority is not "purely indicative" and has a mandatory dimension such that it can set the framework for development consent and thus be subject to SEA.
- The Applicants argued that Article 3 of the SEA Directive should be interpreted consistently with the Aarhus Convention and that the Kyiv Protocol should also be referenced; they relied on EU declarations regarding the Kyiv Protocol, Article 216(2) TFEU, and CJEU authority (including A and Others C-24/19) to support interpreting the SEA Directive in light of relevant international instruments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Clifford v. An Bord Pleanála (No. 2) [2021] IEHC 642 | Public participation can lead to changes in project details during the consultation process. | Cited to explain why the court amended questions to be referred and why consultation can produce different decisions. |
| Coyne v. An Bord Pleanála [2023] IEHC 412 | Illustration of the effect of public participation and related principles in planning litigation. | Used as supporting authority for the general proposition that consultation can alter project details and for other points referenced. |
| Eglington Residents Association v. An Bord Pleanála [2025] IEHC 209 | Illustration of public participation effects and planning law principles. | Referenced as part of the line of authority on consultation and amendment of projects. |
| McDonald v. Minister for Housing (No. 1) [2025] IEHC 728 | The earlier (No. 1) judgment proposing four questions for reference to the CJEU and inviting submissions. | Described as the source of the draft questions and the basis for soliciting submissions that led to reconfiguration of questions. |
| O'Sullivan v. Health Service Executive [2023] IESC 11 | Limits on procedural expectations and fairness in draft judgment procedures. | Quoted to emphasise constraints on treating draft procedures as opening new phases of litigation and on procedural expectations. |
| O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75, [2017] 3 I.R. 751, [2018] 1 I.L.R.M. 245 | Commentary on procedural expectations and fairness in judicial processes. | Used to caution against assuming extensive procedures are required at every procedural point. |
| Attorney General v. Crosland (No. 2) [2021] UKSC 58, [2022] 1 W.L.R. 367 | Reasons for restricting publication and circulation of draft judgments in the interests of administration of justice. | Relied upon to justify the court's direction that draft judgments are not public domain and must not be widely transmitted. |
| NJ and OZ v An Bord Pleanála and Others, C-09/22, ECLI:EU:C:2023:176 (Site de St Teresa's Gardens) | That only acts of a mandatory nature are capable of limiting the discretion of authorities and thus must be subject to SEA. | Quoted at para. 50 and applied to conclude that non-SPPR (have-regard) text is not mandatory and therefore does not set the framework for SEA purposes. |
| Cork County Council v. Minister for Housing, Local Government and Heritage [2021] IEHC 683 | Principle that a "have-regard" obligation does not require compliance and is not the same as a binding obligation. | Cited to support the proposition that non-binding guidance does not limit discretion and thus is not within the SEA "framework" concept. |
| Jennings v. An Bord Pleanála [2022] IEHC 61 | Examples of the legal consequences of "have-regard" obligations in planning contexts. | Referenced among authorities illustrating that "have-regard" does not impose compliance. |
| EPUK Investments Ltd v. Environmental Protection Agency [2023] IEHC 59 | Further instance of the application of "have-regard" principles in administrative law. | Used as part of the line of domestic authorities supporting the court's conclusion on non-SPPR text. |
| Concerned Residents of Coolkill, Sandyford Downs and Lamb's Brook v. An Bord Pleanála [2025] IEHC 265 | Referenced in the context of "have-regard" obligations and planning law authority. | Included as one of several domestic authorities cited to demonstrate the established legal position on have-regard duties. |
| Fernleigh Residents Association CLG v. An Coimisiún Pleanála [2025] IEHC 655 | Another example in the domestic jurisprudence regarding planning obligations and related principles. | Cited in support of the established understanding that have-regard obligations do not amount to mandatory rules. |
| Foran v. An Coimisiún Pleanála & Glenveagh [2026] IEHC 23 | Recent domestic authority on related planning law points. | Referenced among authorities supporting the court's view on non-binding guidance. |
| Duffy v. Minister of Housing, OPR & Clare County Council [2026] IEHC 46 | Recent domestic authority cited in the same line of cases. | Included to show the breadth of domestic authority on have-regard obligations. |
| Case C-321/18, Terre wallonne ASBL | Cited for the proposition that "provisions of purely indicative value" do not set the framework for future development consent. | Relied upon by the Respondent and considered by the court in concluding that non-SPPR text does not set a framework requiring SEA. |
| Case C-222/23, Toplofikatsia Sofia | Principle that a reference under Article 267 TFEU must be necessary for the effective resolution of a dispute; not for general or hypothetical questions. | Relied on by the Respondent to argue that Question 4 need not be referred if unnecessary to resolve the dispute. |
| Case C 290/15, D'Oultremont | That the SEA Directive's provisions must be interpreted broadly in light of the Directive's objective. | Cited by the Respondent to argue for a broad assessment under Article 3(2)(a); the court also referenced the Advocate General's comments on the role of international agreements. |
| A and Others C-24/19 | That international undertakings such as the Espoo Convention are relevant to interpretation of the SEA Directive. | Cited by the Applicants to support interpreting the SEA Directive in light of international instruments (Aarhus/Kyiv). |
| C-821/25 Save Leitrim | Example of a reference being made to the CJEU to reconsider or develop aspects of EU law; used illustratively by the court. | Mentioned as an example where the court is inviting the CJEU to reconsider an issue on the basis of changed context; used to explain caution about asking the CJEU to change recent decisions without solid grounds. |
Court's Reasoning and Analysis
The court began from the position that consultation aims to produce better decisions and that draft questions should be open to informed submissions. After receiving detailed submissions from both sides, the court reconsidered its earlier proposal of four draft questions.
On the non-SPPR ("have-regard") issue the court found the Respondent's submissions compelling. The court relied on the CJEU's statement in NJ and OZ (Site de St Teresa's Gardens) that only acts of a mandatory nature are capable of limiting the discretion of competent authorities and thus must be subject to SEA. The court held that non-SPPR text could not be characterised as an act capable of limiting discretion or excluding modalities of implementation; a "have-regard" obligation does not require compliance and therefore does not set the SEA "framework". Accordingly, the court treated that point as acte clair against the Applicants.
Regarding the Aarhus / Kyiv interpretative question, the court considered competing formulations and concluded that a general interpretative question about reading the SEA Directive in an Aarhus-compliant manner was coherent and should be retained as an independent (and, in its preferred ordering, first) question. The court also concluded that if the interpretative question goes to the CJEU, reference to the Kyiv Protocol should be included alongside the Aarhus Convention given their similar status as instruments approved on behalf of the EU.
The court applied established procedural safeguards for draft judgments: parties were given a limited opportunity to point out errors or raise confined issues; drafts are not public and their circulation is restricted; no substantive comments were received within the set deadline.
Holding and Implications
The judgment for reference will proceed on the basis of reconfigured questions.
Direct consequences for the parties:
- The court concluded that the non-SPPR / have-regard point is acte clair against the Applicants and must fail (it will not be referred to the CJEU in its original form).
- The court decided that an independent general question on interpreting Article 3 of the SEA Directive in an Aarhus-compliant manner is appropriate and will be included (and ordered that the judgment for reference proceed with reconfigured questions reflecting that choice).
- The court determined that reference to the Kyiv Protocol should be included if the Aarhus/Kyiv interpretative question is pursued to the CJEU.
No broader legal precedent beyond the court's reconfiguration and ordering of the reference was asserted to arise from this short ruling; the direct effect is the court's decision to proceed with reconfigured questions to the CJEU and the rejection (as acte clair) of the Applicants' argument on non-SPPR text.
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