Court to rule later on An Bord Pleanála’s handling of Apple data centre plan

The Supreme Court will rule on a later date whether An Bord Pleanála breached its legal obligations in how it approved the first phase of technology company Apple’s planned €850 million data centre in Athenry.

Although Apple is not now proceeding with the project, the judgment is likely to affect the board’s consideration of other data centre developments.

An appeal by two local residents over the board’s decision was heard by a five judge Supreme Court, sitting at NUI Galway, on Wednesday.

At the conclusion of submissions, the Chief Justice, Mr Justice Frank Clarke said the court was reserving its judgment.

The appeal by Sinead Fitzpatrick, who lives close to the planned development, and Allan Daly, of Athenry, concerns the High Court’s dismissal of their challenge concerning how the board dealt with the company’s proposal. The appeal was opposed by the board.

The State applied to be joined to the appeal as an amicus curiae, assistant to the court on legal issues, and supported the board’s position.

Apple is no longer involved in the case, initiated by the residents after the company got planning permission from the board on August 11th, 2016 for a development of one data hall and an associated grid connection at Athenry.

Assessment

The core issue concerns the extent to which the board is obliged to assess the environmental impact of the balance of the Apple “masterplan” for eight data halls as part of the planning body’s obligation to carry out an Environmental Impact Assessment (EIA).

The appellants, represented by Micheal McDowell SC, with Oisin Collins BL, contend the board is obliged to carry out a full EIA on the entire masterplan. They argued the masterplan is a significant development both in terms of physical scale and its ultimate energy demands and the Athenry site was specifically chosen to accommodate the large physical scale of all eight data halls.

The board had identified the project’s energy usage and greenhouse gas emissions as having significant adverse environmental effect but failed to assess the energy usage and emissions of the entire masterplan development or to require Apple to take measures to avoid, reduce and, if possible, remedy those, it was submitted.

They also argue, as an alternative plea, the board was obliged to assess environmental impacts in a manner that fell short of being required to assess the entire masterplan but exceeding the EIA actually carried out by the Board.

In submissions opposing the appeal, the board, represented by Nuala Butler SC, with Fintan Valnetine BL, argued there was no legal requirement to conduct an EIA in respect of the overall masterplan.

Disputed

The board disputed arguments by the appellants that the court, before finally deciding the appeal, should refer that particular issue for determination by the Court of Justice of the EU.

The board also submitted it had adequately discharged its obligations to take account of the masterplan “as far as practically possible”.

In its submissions, the State, represented by James Connolly SC, with Claire Hogan BL, argued there was no element of “project-splitting” to avoid the carrying out of an EIA on any part of the project.

An EIA was carried out on the project for which planning approval was sought — one data hall — and any future development of the additional data halls under the “masterplan” would have to secure planning consents based on further EIAs, it submitted.

The site of the proposed Apple data centre in Athenry. While Apple is not now proceeding with the project, the court’s decision is likely to affect the board’s consideration of similar data centre developments