Speed read

On 10 February 2026, the High Court referred a number of legal questions to the Court of Justice of the European Union (CJEU) about the environmental assessment requirements for the Design Standards for Apartments, Guidelines for Planning Authorities (the Guidelines). It will take 12-18 months to get a response. The Guidelines remain legally applicable in the meantime.

Update

This reference arises from a legal challenge taken against the Guidelines, which were published in July 2025 by the Minister for Housing, Local Government and Heritage. In October 2025, the McDonald judicial review proceedings issued. Those proceedings challenged the Guidelines, aimed at facilitating higher density units in urban areas, on the basis that they should have been the subject of prior Strategic Environmental Assessment (SEA) but were not.

A plan or programme, such as the Guidelines, must be subject to SEA before it is finalised if the plan or programme:

  1. Relates to certain categories, in this instance land use planning; and
  2. Sets a binding framework for future development consent of projects which require Environmental Impact Assessment, for example large housing developments.

The applicants contended that before the Guidelines were brought into force they should have been subject to SEA, which involves public consultation and detailed analysis of the proposed measures. The Guildelines brought in changes such as redcutions in floor areas for studios, removal of restrictions on the percentage of unit mix and easing dual aspect ratios. The Guidelines are binding on planning authorities when deciding whether to grant planning permission for a housing development.

The Planning and Environment High Court heard the case quickly, on 4 December 2025. During the hearing the Court conducted a comprehensive review of relevant EU case law on the SEA Directive. The “kernel” of the applicants’ case was that the Guidelines required SEA because:

  1. They contain criteria and conditions (including characteristics and size, operating conditions and allocation of resources) that future development consents must be consistent with; and
  2. They provide a derogation from inconsistent provisions in Development Plans which are subject to SEA.

A number of judgments issued in quick succession (from 17 December to 10 February) with the net result being that the judge decided the case involved issues of EU law that needed to be clarified. So, a reference to the CJEU was determined to be necessary and agreed questions sent. The Court requested that the CJEU give the case priority over other cases having regard to the importance of the Guidelines for the Government’s housing policy. We expect that the CJEU referral could take anywhere between 12 and 18 months to be heard. In the meantime, the Guidlines remain legally valid. As a fall-back posltion, the Minster’s legal representative advised the Court in December that a National Planning Statement will be prepared to deal with apartment standards. That statement has yet to issue.

For further information, please contact Alison Fanagan, SC, Consultant, Niamh Collins, Associate, or your usual ALG Environmental and Planning contact.