Judges F Biltgen, J Passer (Rapporteur)
Advocate General J Kokott
The Irish planning board granted planning permission for extensive development at the site of an old disused factory in Dublin. The applicants sought to have that decision annulled claiming, inter alia, that the grant of permission infringed Parliament and Council Directive 2001/42/EC (the strategic environmental assessment (SEA) Directive) inasmuch as it was based on a masterplan which had not been subject to an environmental assessment. Article 2(a) of Directive 2001/42 defined “plans and programmes” as plans and programmes, as well as any modifications to them, which were subject to preparation and/or adoption by an authority at national, regional or local level or which were prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and which were required by legislative, regulatory or administrative provisions. Although the masterplan was not a binding legal instrument, it was expressly envisaged by a binding instrument, namely the Dublin City Development Plan 2016-2022, the drafting of which was provided for by domestic legislation. Moreover, that development plan was itself the subject of an environmental assessment and envisaged developments being allowed that would not be consistent with that development plan. Under article 3(2)(a) of Directive 2001/42, an environmental assessment had to be carried out for all plans and programmes which satisfied two cumulative conditions: namely that they were prepared for the sectors referred to in that provision and they set the framework for future development consent of projects listed in Annexes I and II to Parliament and Council Directive 2011/92/EU (the environmental impact assessment (EIA) Directive). In those circumstances, the High Court (Ireland) stayed the proceedings and to referred a question, inter alia, to the Court of Justice of the European Union for a preliminary ruling asking, in essence, whether articles 2(a) and 3(2)(a) of Directive 2001/42 meant that a plan came within the scope of that Directive where, first, it had been prepared by an authority at local level in collaboration with a developer of the project concerned by that plan and had been adopted by that authority, second, it had been adopted on the basis of a provision in another plan or programme and, third, it envisaged developments distinct from those envisaged in another plan or programme.
On the reference—
Held, a plan adopted on a legal basis such as the Dublin City Development Plan 2016-2022 could constitute a plan the adoption of which was regulated by legislative, regulatory or administrative provisions, within the meaning of article 2(a) of Parliament and Council Directive 2001/42/EC, which was for the referring court to determine. “Plans and programmes” included not only their preparation, but also their modification, to ensure that provisions which were likely to have significant environmental effects were subject to an environmental assessment. In accordance with article 3(3) of Directive 2001/42, that concept also included minor modifications to plans and programmes referred to in article 3(2). Accordingly, that concept had necessarily to include acts which, without amending a plan or programme, nevertheless allowed derogation from certain elements of the framework for future development consent of projects listed in Annexes I and II to Parliament and Council Directive 2011/92/EU. The objective of Directive 2001/42, to provide for a high level of protection of the environment by ensuring that an environmental assessment was carried out of plans and programmes which were likely to have significant effects on the environment, would be undermined if it were possible to derogate from a plan which had been subjected to an environmental assessment without such a derogation being subject, at the very least, to the obligation to establish whether that derogation was likely to have significant effects on the environment. Only acts of a mandatory nature were capable of limiting the discretion enjoyed by those authorities and thus of excluding certain modalities of implementation of projects which might prove to be more favourable to the environment. It followed that it was only if, under Irish law, the masterplan was binding on the authority competent to grant development consent for the project that it would be necessary to consider that plan came within the scope of Directive 2001/42 and should therefore have been subject, at the very least, to the obligation imposed on member states in article 3(3) to determine whether it was likely to have significant effects on the environment. Accordingly, articles 2(a) and 3(2) and (3) of Directive 2001/42 meant that a plan came within the scope of that Directive where (i) it had been prepared by an authority at local level in collaboration with a developer of the project and had been adopted by that authority, (ii) it had been adopted on the basis of a provision in another plan or programme and (iii) it envisaged developments distinct from those envisaged in another plan or programme, provided that it was at least binding on the authorities with competence to grant development consent (judgment, paras 34–35, 39–41, 42–43, 50–52, operative part, para 1).
P Bland SC and M O’Donnell (instructed by O’Connell Clarke, Dublin) for the applicants.
B Foley SC and S Hughes (instructed by Philip Lee, Dublin) for An Bord Pleanála (Ireland's national independent planning body).
NJ Travers SC and E Egan McGrath (instructed by Chief Solicitor) for Ireland and the Attorney General.
R Mulcahy SC, A Carroll and J Kelly for the developer.
C Hermes and M Noll-Ehlers, agents, for the European Commission.