The High Court has reserved its judgment in an action brought against the Government’s apartment standards guidelines.
Mr Justice Richard Humphreys on Thursday heard arguments in the case brought by four councillors and a journalist to the guidelines, published in July by Minister for Housing James Browne.
The guidelines introduced changes aimed at bridging a “viability gap”, the Government said, that 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.
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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 (SEA). They are seeking several orders, including one quashing the Minister’s guidelines.
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.
On Thursday, Tom Flynn SC opened his side’s case on the “single and straightforward” argument that the guidelines should be subjected to an assessment.
The argument flows from a requirement of the EU’s SEA directive, which provides that plans or programmes “which set the framework for future development consent” must be subjected to an assessment.
Mr Flynn said his side’s primary point is that the guidelines contain specific planning policies requirements (SPPRs), which are binding on planning authorities. “Therefore on that basis alone, they’re caught by the directive,” he submitted.
He said it was “incontestable” that the SPPRs within the guidelines “set the criteria and detail rules” for planning permission of apartment developments.
Presenting the State’s argument, Fintan Valentine SC argued that the SPPRs in the guidelines primarily impact a development’s internal design parameters, and fall outside the SEA directive.
Counsel submitted that the guidelines do not impact a proposed development’s height, size or operating condition, among other factors. These factors are dealt with in other Government planning guidelines, which are subject to environmental assessment, such as the sustainable residential development and compact settlements guidelines, it was submitted.
These plans set the criteria and rules considered when considering a planning application for an apartment development – not the SPPRs in the complained-of guidelines, the State submitted. In those circumstances, an environmental impact assessment of the guidelines was not required, as they do not fall within the SEA directive, it was submitted.
Replying, Mr Flynn said the State’s argument relied on a “strange and artificial interpretation of the guidelines”.
Counsel submitted that the point of the guidelines is to alter the type of apartment development that can be built. He said the guidelines “unquestionably” affect the location, size, operating condition and other factors: “That’s their whole purpose.”
The State’s argument that location, nature and size of development – among other factors – are not impacted by the guidelines relies on the most restrictive interpretation of those terms, he said.
Mr Justice Humphreys noted there appeared to be no definitive authority relating to the issue in dispute between the sides.
The judge canvassed the possibility of the case being referred to the European Court of Justice, either by his court or a higher court. The sides agreed that if a referral were to happen, it would be preferable for it to happen “sooner rather than later”.
The judge reserved his decision.
