Apple data centre case to continue despite decision to cancel project

The Supreme Court has agreed to join the State to an appeal by two local residents concerning An Bord Pleánala's approval for the first phase of a €850 million data centre for tech giant Apple in Co Galway.

Apple announced earlier this month it is not proceeding with the Athenry centre and will not participate in the appeal, brought by Sinead Fitzpatrick and Allan Daly, who opposed the project for reasons including its energy demands.

Because the appeal raises important legal issues and the planning permission has another three years to run and could be assigned to another entity, it will be heard despite Apple’s decision to pull out of the project.

It raises issues concerning the Board’s obligations under EU law when assessing such projects and the Supreme Court has already indicated it may be necessary to refer issues to the Court of Justice of the EU.

The central issue concerns the manner in which the Board was required by law to have regard to the potential expansion of the project from one data hall to the possible construction of a total of eight data halls, the court said.

There may be a point of law of general public importance concerning the application of the relevant broad general principles of EU law to this category of case which may require a reference to the CJEU, it also said.

The appellants sought a Supreme Court appeal after the High Court’s rejection of their case last October.

They argued the Board was legally obliged to carry out an environmental impact assessment (EIA) of Apple’s entire “masterplan” for eight data halls, which would increase total demand on the national grid by 6-8 per cent, and not of just one hall. There is no national or strategic assessment concerning how data centres being built across the country will be supplied with energy, they said.

Notice party

Lawyers for the State said earlier this month it wished to be joined as a notice party to support the Board’s postion.

The appeal came before the Chief Justice, Mr Justice Frank Clarke, for case management on Thursday.

Oisín Collins BL, for the appellants, said, despite reservations the matter has developed into a “political football” and lack of clarity as to the precise reason for the State’s involvement, they were not objecting to it being joined as a notice party.

Environmentalist Peter Sweetman, who is involved in separate litigation concerning a data centre project by Amazon, is not proceeding with his bid to make certain observations on data centres in this appeal, counsel added.

Because An Bord Pleánala was “strenuously” objecting to Mr Sweetman being involved, the latter considered it was not worth having hearings as to whether he should be involved, he said.

The Board has dropped its argument so an appeal was moot or pointless in the context of Apple’s pull out, he added.

Garrett Simon SC, for the State parties, and Nuala Butler SC, for the Board, said they wanted the scope of the appeal to be the first matter decided by the court.

Mr Collins said his side believes a reference to the CJEU would be appropriate and are anxious the appeal runs in a manner such as would minimise their legal costs.

The Chief Justice said he would join the Attorney General and the Minister for Housing and Planning as notice parties to the appeal.

He also made directions for receipt of submissions from the sides concerning the precise scope of the appeal, to include their views on any issues for reference to the CJEU, and adjourned the matter for further case management in July.

Apple’s announcement it was not proceeding with the centre came days after the Supreme Court said it would hear the appeal by Mr Daly, of Athenry, and Ms Fitzpatrick, who lives close to the site.