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

1. 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.
2. 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.
3. 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).
4. 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.
5. 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

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.