Key Contacts: Leonora Mullett – Partner | Rachel Minch – Partner | Margaret O’Leary – Senior Associate|
Location…Location…Location or maybe not!
Here we discuss two recent judgments on the meaning of an Urban Development Project in the context of the requirement to undergo an EIA. Both consider the interpretation of the word ‘urban’ in that context.
Council Directive 2011/92/EU (the EIA Directive) is concerned with the assessment of ‘projects’ and obliges Members States to ensure that “before development consent” is given “projects likely to have significant effects on the environment are made subject to a requirement for development consent and an assessment with regard to their effects on the environment”. Those projects are defined in Article 4 of the EIA Directive, read in conjunction with Annex I and Annex II.
Annex II includes, at 10(b) ‘Urban Development Projects’ and at 10(e) ‘Construction of Roads’ both under the heading ‘Infrastructure Projects’. The transposing Planning and Development Regulations 2001 include at Class 10(b)(iv) “Urban development which would involve an area greater than 2 hectares in the case of a business district, 10 hectares in the case of other parts of a built-up area and 20 hectares elsewhere”.
Article 1(2) of the EIA Directive defines ‘project’ as: “the execution of construction works or of other installations or schemes, -other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources”. Whether the Cycleway would involve construction works was considered in Flynn & Carvill v Dublin City Council [ 2025] IECA 84.
That case concerned the proposed Sandymount Strand Cycleway (the Cycleway). The Council had conducted an EIA Screening noting that the Cycleway involved minimal works and was unlikely to have significant effects on the environment and any effects would be temporary. This was notwithstanding its view the screening was not mandatory as the Cycleway did not come within the classes of project specified in the Directive or the transposing legislation.
The High Court had noted that “The cycleway will require the removal of a traffic island at the junction of Strand Road and Merrion Road, the removal of a number of mini roundabouts and the placing of barriers to separate the cycleway from the road carrying traffic” finding that it constituted an ‘Urban development’ project in the nature of building or construction for EIA purposes and a ‘road development’ for the purpose of Section 50 of the Roads Act 1993.
The High Court did not accept the Cycleway would only be a temporary one or that any effects would be temporary and found there was no proper consideration of pollution, noise and traffic effects within the EIA Screening finding an EIA was required .This meant a loss of the exemption under the Planning Code in respect of local authority owned development, which constitutes a sui generis class of exempted development. Of note, the applicant to the judicial review proceedings had not gone as far as to say that an EIA was required. The Council appealed the decision.
The Court of Appeal commented that the ‘wide scope and broad purpose’ of the EIA Directive must be borne in mind but held that for the requirement for an EIA screening to be triggered (including as to sub-threshold development), the Cycleway would need to constitute a ‘project’ as prescribed by Annex I or Annex II of the Directive.
In considering whether this was the case, the Court of Appeal considered Class 10(b) and referred to Case C-332/04 Commission v Spain which says that the essential characteristic of an urban development project is that the project is urban “in nature” and thus not dependent on the location of the project. It held the fact that the location of the Cycleway is in urban space is not determinative of the applicability of the EIA Directive; rather, the issue has to be looked at in the context of the nature of the development being contemplated.
The Court of Appeal also rejected the argument that the works here could amount to ‘urban development works’ by reference to the EU Commission Guidance as to what constitutes urban development. Of note, the EU Commission produced updated Guidance in 2024 on the interpretation of project categories for the purposes of the Directive (see here).
Section 50(1)(a) of the Roads Act 1993 provides that a proposed road development that comprises any of the following shall be subject to an EIA: the construction of a motorway/ busway/ service area and/or any prescribed type of road development consisting of the construction of a proposed public road or the improvement of an existing public road.
The Council argued that the Cycleway would involve neither the construction of a road nor the improvement of a road, and that “improvement” under section 50(1)(c) of the Roads Act 1993 must be read to refer to construction-type road improvements as discussed in Case C-142/07 Ecologistas en Accion – CODA v Ayuntamiento de Madrid. There, the CJEU had held that a project for refurbishment of a road which would be equivalent, by its size and the manner in which it is carried out, to construction, may be regarded as a construction project for the purposes of that Annex.
The Court of Appeal held that “improvement” in the context of section 50(1)(c) must be read to mean the physical enhancement of the of the road by way of construction or building works and that the Cycleway does not purport to improve an existing road. It held that for the purposes of EIA, the nature of works involved in the Cycleway did not come within the meaning of building or construction.
The English Courts have found that where there is no physical intervention in the landscape, the project falls outside the parameters of urban development within the meaning of the Directive.
In Lyon v Cambridge City Council [2012] EWHC 2684, the Court did not consider it arguable that either the demolition of the old sports pavilion or the construction of a new sports pavilion amounted to an urban development project.
In the matter of Ryan v An Bord Pleanála, Analog Devices and Ors [2025] IEHC 111, the applicant dairy farmer challenged two grants of planning permissions for development by Analog Devices in the Raheen Industrial Business Park, where it operates a manufacturing facility. One permission related to the replacement of an existing liquid hydrogen storage tank with a larger tank and the other concerned inter alia the construction of an R & D Building. The applicant asserted that the proposed development should have been subject to EIA on the basis of being Urban Development in the context of Class 10(b) Annex II, given the urban location of the development. The Respondent submitted that the predominant theme of the surrounding location was farmland and grassland.
Holland J noted that whilst Annex II, Category 10 is headed “Infrastructure” this does not circumscribe the definitions of the project classes in it .The Court considered that industry is generally catered for by Annex classes other than Class 10(b) and that the Commission’s 2024 Guidance lists many examples of urban development, and while some listed examples are infrastructural – for example, water treatment plants – none are industrial. The Court concluded on balance that, where industrial development is to be subjected to EIA, Annexes I and II of EIA Directive identify it reasonably specifically or in a specifically industrial class. On that view, Class 10(b) Urban Development should not, at least in general, be considered to include industrial development. That conclusion turns on the non-urban nature of the development within the meaning of the Directive rather than on its location. On that basis the Court found the development was not Urban Development within Class 10 (b) and that the Proposed Developments as to their type and nature did not fall into a listed class such as to require at least screening /preliminary examination for sub-threshold EIA.
Conclusion
Holland J noted in the Ryan case that ‘On a broad view, “urban” would, in its ordinary meaning, mean development of a nature typically pertaining to a collective human residential settlement – be it village, town or city’.
The EIA Directive provides two examples of what could be considered to fall within the category of ‘Urban Development Projects’, i.e. shopping centres and car parks, but these do not constitute an exhaustive list of the activities covered. The EU Commission Guidance 2024 suggests that Category 10(b) could take account of projects with similar characteristics to car parks and shopping centres and construction projects which are urban in nature e.g. housing developments, hospitals, universities, cinemas and which may cause a similar type of environmental impact.
That Guidance also notes that Projects to which the terms ‘urban’ and ‘infrastructure’ can relate, such as the construction of sewerage and water supply networks may fall into Category 10(b) as well as recently including ‘telecommunications/wireless communication deployment’ Projects for integrated urban transport schemes could also be included.
We advise that each project is considered by virtue of the nature of the proposed development and whether it is something that typically pertains to a residential settlement.
We would be happy to provide advice on any queries arising.
