High Court to refer challenge against Government apartment guidelines to EU court

High Court Reporter

The High Court is to refer to the Court of Justice of the European Union (CJEU) legal questions arising in a challenge taken against the Government’s apartment standards guidelines.

In a judgment on Wednesday, Mr Justice Richard Humphreys said he proposed referring to the court questions relating to the interpretation of the EU’s Strategic Environmental Assessment (SEA) Directive, a key issue in the challenge to the guidelines.

“This dispute raises an issue of EU law which is likely to make its way to the CJEU sooner or later, and, if so, sooner is preferable from both sides’ perspectives,” the judge said.

Labour’s Darragh Moriarty, the Green Party’s David Healy and Dan Boyle, Independent councillor Pádraig McEvoy and former Irish Times environment editor Frank McDonald brought the challenge against the guidelines.

They claim that the guidelines should have been subjected to a strategic environmental assessment. They are seeking several orders, including one quashing the Minister’s guidelines.

The apartment guidelines, published by the Minister for Housing in July, introduced changes aimed at bridging a “viability gap” that the Government said has stymied apartment-building.

These changes included an increase in the number of studio apartments developers could include in a project and a reduction in the minimum permitted size of apartments.

Last month, the court was informed that the Government intends to replace the guidelines with a national planning statement, which will be subjected to an environmental assessment. Notwithstanding this, the State maintains that an environmental impact assessment of the guidelines was not required.

As provided for in the Planning and Development Act 2024, a national planning statement comprises policies to support proper planning and sustainable development, and guidance for the implementation of those policies.

In his judgment, Mr Justice Humphreys said that several “pinch points” emerged between the parties in the case.

Among these points is whether or not guidelines relating to apartment design come within the scope of the SEA Directive, in circumstances where the guidelines impact on the number of units within a development, and a unit’s internal features, but do not impact the “number, size, operating conditions or funding of apartment developments themselves”.

If not, another question arises between the parties – that is, whether or not the guidelines come within the scope of the SEA directive if they derogate from other plans that require an assessment under the Directive.

Also at issue between the parties was whether or not the SEA Directive excludes a plan where domestic law puts a binding obligation on relevant authorities to consider such a plan in considering a grant of permission for a development, but does not put a binding obligation on the authorities to comply with the plan.

Mr Justice Humphreys said the questions raised meet the criteria for reference to the CJEU for clarification. The judge said he proposed doing so.