Player Wills site: Major housing plan faces delay as case referred to Europe

Plans for the development of hundreds of new homes in Dublin's south inner city could face delays after the High Court referred a legal challenge to the European Court of Justice.

Local residents had objected to plans for a build-to-rent development including 416 dwellings in five blocks ranging from two storeys to 16 storeys on the former Player Wills/Bailey Gibson industrial sites, close to the South Circular Road.

The senior planning inspector with An Bord Pleanála recommended refusal of the application on August 20th, 2020. However, the board disagreed and granted permission on September 14th, 2020, under fast-track planning legislation.

Local residents had initiated judicial review proceedings seeking to have the board’s decision quashed.

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The applicants also sought a declaration that section 28 of the Planning and Development Act 2000 was invalid as contrary to EU law, specifically the habitats directive 92/43/EEC and the Environmental Impact Assessment (EIA) directive 2014/52/EU, on the grounds that mandatory guidelines under that section interfere with the process of appropriate assessment or environmental impact assessment.

Challenge rejected

In the High Court, Mr Justice Richard Humphreys rejected the challenge brought by residents under Irish law.

However, he decided that three questions relating to EU law should be sent to the Court of Justice of the European Union.

The issues being referred to Europe concern directives designed to ensure that development plans and regulations are subjected to environmental assessment.

The first question to be referred is whether “article 2(a) of directive 2001/42/EC has the effect that the concept of ‘plans and programmes … as well as any modifications to them … which are subject to preparation and/or adoption by an authority at national, regional or local level…’ includes a plan or programme that is jointly prepared and/or adopted by an authority at local level and a private sector developer as owner of adjacent lands to those owned by a local authority”.

The second question to be referred is whether article 3(2)(a) of directive 2001/42/EC has the effect that the concept of “ ‘plans and programmes … which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects listed in annexes I and II to directive 85/337/EEC…’ includes a plan or programme that is not in itself binding but which is expressly envisaged in a statutory development plan which is binding, or which proposes or envisages in effect a modification of a plan that was itself subject to Strategic Environmental Assessment ( SEA)”.

The High Court also referred to the Court of Justice of the European Union a question on whether article 2(1) of directive 2011/92/EU “has the effect of precluding regard being had by the competent authority in the process of environmental impact assessment to mandatory government policies, in particular those which are not based exclusively on environmental criteria, being policies that define in certain circumstances situations where a grant of permission is not to be ruled out”.