Supreme Court to decide later on Apple data centre appeal

Objectors argue case raises issues relevant to similar projects

Apple said on Thursday morning it would not proceed with the €850 million Athenry development. Photograph: Getty

Apple said on Thursday morning it would not proceed with the €850 million Athenry development. Photograph: Getty

 

The Supreme Court will decide later whether to proceed with hearing an appeal concerning An Bord Pleanála’s approval for the first phase of a €850 million data centre for tech giant Apple in Co Galway.

While Apple has said it had decided not to proceed with the centre at Athenry, Oisin Collins, for objectors Sinead Fitzpatrick and Allan Daly, said the appeal raised important legal issues relevant to similar projects which should be decided.

The disputed planning permission also remains extant, the court heard.

Nuala Butler SC, for An Bord Pleanála, said she would take instructions on whether it will argue the appeal is moot or pointless given Apple’s decision not to build.

If the Supreme Court decides to proceed with the appeal, the State and environmentalist Peter Sweetman will also ask the court to be permitted to intervene.

Garret Simons SC, for the State, said, if the appeal was proceeding, the State wished to intervene in support of the planning board’s position.

Similar concerns

Mr Collins, for the appellants, said he had been told by Mr Sweetman he wished to intervene because he had raised similar concerns as the objectors in this case in relation to a development by Amazon.

Ms Butler said there would be a “very strong objection” by her side to Mr Sweetman being permitted to intervene. There was precedent for the State to intervene in matters where there is a public interest, she added.

Earlier, Rory Mulcahy SC, for Apple, confirmed it had decided not to proceed with the development.

The Chief Justice, Mr Justice Frank Clarke, made directions for motions to be brought setting out the positions of the sides and adjourned the matter to May 31st for further directions.

Apple’s announcement it is not proceeding comes after the Supreme Court last week said it would hear the appeal by Mr Daly, of Athenry, and Ms Fitzpatrick, who lives close to the site.

The court also indicated it may be necessary to make a preliminary reference of issues to the Court of Justice of the EU (CJEU).

EU law

The court said one of the matters to be considered was whether a point of law arose concerning the application of broad general principles of EU law in particular cases and, if so, whether the court was obliged to refer issues to the CJEU.

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

It 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.

If such a point does arise, the court would then have to consider whether it must make a reference to the CJEU concerning provisions of the EU treaty applying to a court of final appeal.

Rejection

The applicants 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 an EIA of just one hall.

The overall grid connection planned at Athenry would have a footprint equal to Dundrum town centre in Dublin but there is no national assessment and no strategic assessment concerning how data centres being built across the country will be supplied with energy, they said.