Decision on right to appeal Apple data centre permission due on Wednesday

A judge will rule next week whether to allow two local residents appeal his decision clearing the way for tech giant Apple to develop the first phase of a planned €850 million data centre in Athenry, Co Galway. Mr Justice Paul McDermott will give his decision on Wednesday.

Michael McDowell SC, for the residents, argued on Thursday that it is a matter of "dramatic public importance" that the disputed permission was granted by An Bord Pleanála in a manner that "sliced and diced" the overall proposed development.

Their core concern was that the board gave permission for a single data hall on the Athenry site on the basis of Apple’s masterplan for eight data halls but the board, at the same time, concluded the entire masterplan does not require an Environmental Impact Assessment (EIA), he said.

Before an appeal can be brought, Mr Justice McDermott must decide if his High Court judgment earlier this month dismissing the residents’ case raises a point of law of exceptional public importance which it is desirable, in the public interest, for the Court of Appeal to decide.

The concerns of Sinéad Fitzpatrick and Allan Daly, Lisheenkyle, Athenry, about the planned development, intended to include eight data halls on completion within 15 years, include its considerable energy demands.

The data centre development will increase demand on the national grid by 6-8 per cent, the court has heard. If other planned data centres are built around the State, the increased demand could rise to 32 per cent.

Although a board inspector raised concerns about the energy demands, and their impact on Ireland’s obligations to reduce greenhouse gas emissions, the board itself failed to take a position on that key issue, they claim.

In seeking an appeal, the applicants claim the High Court wrongly found the board met its obligations by carrying out an environmental impact assessment (EIA) on Apple’s planning application for one data hall. They argue the board was required to do an EIA of the masterplan for eight data halls.

Eight data halls

The Athenry site was selected because of its 500-acre size and the fact it could accommodate eight data halls and the project would not go ahead unless all eight were built in accordance with Apple’s masterplan, Mr McDowell said.

If developments can be broken down and sliced and diced in this way, this is a matter of “dramatic public importance” across the planning spectrum, including for motorways and other major projects, he said.

The applicants points of law include the extent to which interdependence between various developments needs to be considered in deciding whether a particular development is a standalone one. Another point concerns the obligation under national and EU law to identify the main effects of the development and the main measures to reduce or offset those.

Mr Justice McDermott heard closing arguments from Mr McDowell today on the application for leave to appeal his judgment delivered earlier this month. The judge said he will rule on the application next Wednesday.

Both the board and Apple have opposed leave to appeal, arguing no exceptional point of law was raised and that an appeal was not necessary in the public interest.

Alternative location

Also on Thursday, counsel for Brian McDonagh, whose separate challenge to the Apple permission was also rejected, told the judge his client was not seeking leave to appeal.

Rory Mulcahy SC, for Apple Distribution International, said it was not, in the circumstances of Mr McDonagh withdrawing proceedings, seeking costs against him. Nuala Butler SC, for the board, said it would also not pursue costs.

In his judgment earlier this month on the challenge by Mr McDonagh, of Ballymount Cross Business Park, Dublin, the judge found Mr McDonagh lacked the necessary legal standing to challenge the permission as he does not live close to the site and had not participated in the planning process.

Mr McDonagh should have disclosed at an early stage that he was a director and shareholder of Ecologic Data Centre Ltd, which had secured permission for a data centre on a Co Wicklow site considered as an alternative location for the Apple development, the judge added.