Supreme Court Refers National Planning Framework Challenge to the CJEU

A challenge to the National Planning Framework (NPF) and its alleged failure to comply with the SEA Directive was recently heard by the Supreme Court resulting in a CJEU referral. We investigate the arguments for and against the legality of the NPF as well as the questions that will be put forward to the CJEU.

Background

This case involved a challenge to the two strands of Project Ireland 2040, the National Planning Framework (the NPF) and the National Development Plan (the NDP) on account of the alleged failure to meet the requirements the Strategic Environmental Assessment Directive 2001/42/EC (the SEA Directive).

The NPF was described by Mr Justice Barr in the High Court case as “a macro spatial strategy which maps out general development goals for the country for the period up to 2040”. The NDP is an investment plan to support the implementation of the NPF by the provision of capital investment, part of which was a dedicated €3 billion regeneration and development fund.

The central issue in this case from which the others flowed was whether the NPF and/or the NDP qualify as a “plan or programme” within the scope of the SEA Directive and, as such, an environmental assessment of the effects of either or both plans was required.

Other questions that arose for consideration included: whether the comparison of reasonable alternatives used for the NPF, as required by the SEA Directives, was sufficient; and whether sufficient monitoring provisions are provided for in the NPF.

SEA Directive

The aim of the SEA Directive is to ensure that environmental considerations are taken into account at an early stage in high - level plans or programmes which identify goals within a country or region and which are likely to have significant effects on the environment, but which themselves are not projects to which site-specific planning or development consent requirements are applicable. For example, all developments plans are likely subject to the SEA Directive.

The environmental assessment under the SEA Directive comprises a number of steps:

1. Scoping
2. Preparation of a draft plan accompanied by an environmental report with a consideration of alternatives
3. Public consultation and participation
4. Decision making and the adoption of a plan or programme by the relevant authority, and
5. Ongoing monitoring of a plan or programme

Issue 1: Scope of the SEA Directive

There are two threads to the threshold test under the SEA Directive in order for a plan or programme to be captured:

1. Under Article 2 (a), it must be “required” by some legislative, regulatory or administrative provision which regulates its adoption, and
2. Under Article 3(2), 3(3) and 3(4) it must be one that sets the framework for future development

Some plans or programmes are exempt under Article 3(8) or 3 (9), with the relevant exemption to this case being “financial or budget plans and programmes” under Article 3(8).

The question that flows from Article 2(a) set out above is by what power or authority the NPF was adopted and prepared by the Government. The respondents contended that no legislative or regulatory provisions prescribe the preparation and adoption of the plan and no particular provision exists at a national level requiring its preparation or adoption. The public notice of the adoption and publication of the NPF identified Section 2 of the Planning and Development Act 2000 (as amended) (the PDA) as the legislative source of the power to publish the plan. However, Ms Justice Baker found that Section 2 of the PDA is simply a definition section which is in no sense an enabling or empowering provision and was of the opinion the adoption of the plan by formal decision of the Government was not enough to qualify it as being regulated by Article 2 (a) and noted the autonomous nature of this power.

Does the NPF establish a framework for future development?

Ms Justice Baker observed that although the NPF does not mandate a specific result, it is a plan which has downstream statutory effect. She found that the NPF is more than a policy document. It sets out certain options and a general framework within which local and regional development plans are to be adopted and development permission granted.

Although the plan operates at a high level, it is likely to have environmental effects through its direct impact on downstream decision-making within the meaning of Article 3 (2) (a) of the Directive.

Court’s position

Ms Justice Baker was of the view that the Court of Justice of the European Union (CJEU) has never determined the correct approach to the scope of the SEA Directive when a plan or programme is adopted by an executive arm of state without any legislative or regulatory requirement for its adoption, but where the plan or programme is intended to, and does have under domestic legislative provisions, an import on decision-making at local, regional level and in regard to development consent for a specific project. While she noted the broad approach to interpretation advocated by the CJEU, it did not afford a clear answer to this question.

Ms Justice Baker also considered whether a plan or programme which makes specific provision for the allocation of funds to build certain infrastructure projects with a view to supporting the spatial development strategy of another plan, in the case the NPF, could itself be a plan or programme within the meaning of the SEA Directive.

Issue 2: The assessment of alternatives

The second strand of the appeal concerned the methodology engaged by the respondents in the assessment of the NPF and whether it complied with Article 5(1) of the SEA Directive which provides for the treatment of alternatives before a preferred option is chosen.

The Environmental Report

The focus of the appeal was Chapter 7 of the Environmental Report prepared in conjunction with the NPF. Five reasonable alternatives to the preferred option of macro spatial growth were identified in the Environmental Report. The appellant argued that once a number of options were expressly found to be reasonable, they had to be assessed at the same level and on the same basis as the preferred option and this was not the case in the Environmental Report.

The respondents on the other hand contended for what is described as an “iterative approach” – a process which requires first, the ascertainment of reasonable alternatives, then the comparison of those to arrive at a preferred option, and at that point a full assessment of the likely significant environmental effects of that option is performed.

The Court’s Position

Ms Justice Baker referred to the Commission Guidance on this issue which makes no distinction between the assessment requirements for the draft plan or programme and for the alternatives which should according to that document be done in a “comparable” way. It was observed, however, that this position does not derive from the legislative text, although the guidance document still has persuasive value.

Issue 3: Monitoring

Article 10 of the SEA Directive provides that the competent authority must monitor the significant environmental effects of the implementation of the plan or programme. The appellant’s argument concerned the absence of detail as to how monitoring will occur, who will do it, when it will be done, and how any identified or unforeseen adverse environmental effects will be addressed. The respondents argued that the obligation is one to carry out monitoring, not one to set out in an environmental assessment the monitoring measurements that will be undertaken, and that monitoring can in practice be carried out only on implementation.

Ms Justice Baker was of the view that this issue is one of the application of the provisions of the SEA Directive and no interpretative difficulty requires further clarification from the CJEU and stated any further consideration of the adequacy of the proposals for monitoring should await the response to the questions proposed to be asked by the Court to the CJEU.

Issues for the CJEU

Ms Justice Baker stated that the broad issues that required clarification from CJEU had been identified but invited the parties to make observations before the CJEU reference was to be finalised. The issues that were identified by Ms Justice Baker are as follows:

• What is the correct approach to the scope of the SEA Directive when a plan or programme is adopted by an executive arm of state without any legislative or regulatory requirement for its adoption, but where the plan or programme is intended to, and does have under domestic legislative provisions, an import on decision-making at local, regional level and in regard to development consent for a specific project?
• Whether a plan or programme which makes specific provision for the allocation of funds to build certain infrastructure projects with a view to supporting the spatial development strategy of another plan could itself be a plan or programme within the meaning of the SEA Directive, or whether the fact that a plan which has as its objective the allocation of resources must be treated as a budgetary plan within the meaning of Article 3 (8)?
• Under the SEA Directive, an assessment must be carried out in respect of a draft plan, however is an assessment of a particular level of detail required for all reasonable alternatives identified in a draft plan submitted for consultation before a plan is finally adopted?

The scope of the SEA Directive, and in particular the definition of what is considered to be a “plan or programme” has been brought before the CJEU on a number of occasions and the Court will once again be required to define its scope where a “plan or programme” is adopted without any legislative or regulatory requirement for its adoption, the effect of the specific allocation of funds and also clarify the level of detail required for certain assessments under the SEA Directive.

For more information and expert advice, contact a member of our Planning & Environment team.

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