High Court: Apple Data Centre objectors are refused leave to appeal decision on planning permission

About this case:

• Judgment:
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Rejecting all proposed points, Mr Justice McDermott held that the applicants sought to reargue points already considered.

Application for leave to appeal

In a judgment delivered on 12th October 2017, the High Court rejected all grounds of the application for judicial review of the decision taken by An Bord Pleanála to grant planning permission for an Apple Data Centre in Athenry.

In the present application before Justice McDermott, Sinead Fitzpatrick and Allan Daly sought a certificate for leave to appeal pursuant to s. 50A(7) of the Planning and Development Act 2000 (as amended). The principles in Glancré Teoranta v. An Bord Pleanála IEHC 250 considered.

The applicant advanced five proposed points for certification, however the court sought to distil a point of law of exceptional public importance upon which a certificate under s. 50A(7) might be granted. Not satisfied that one existed, the proposed issue was summarised as:

“When presented with an application for development consent for a “standalone project” that forms part of a larger envisioned “masterplan” development, is it lawful under the Environment Impact Assessment (EIA) Directive … to assess the “masterplan” for the purposes of Article 5(1)(d) and Annex IV(2) relating to the alternatives assessment (including assessment of alternative locations), while simultaneously only assessing the “standalone project” for the impact assessments required under Article 5(1)(b) and Annex IV(5).”

Environment Impact Assessment

The main point advanced by the applicants was that as a matter of exceptional public importance the court ought to certify as a point of law whether the 240MW development could be subject to a consent or permission together with phase one permission without considering the effects of the power demand of the entire development at this stage and whether it is essential as a matter of European law to conduct an EIA in respect of the entire masterplan before considering the grant of permission.

The applicants and respondents agreed that the test which should be applied was set out in Case C-396/92 Bund Naturschutz in Bayern v. Freistaat Bayern.

The Court held that the applicants had not identified any uncertainty in the principle adumbrated in Bund Naturschutz in Bayern by the Advocate General; or in its interpretation subsequently in Friends of the Curragh Environment v An Bord Pleanála IEHC 243 or Bowen-West v. Secretary of State Env. L.R. 22 (or any of the other authorities cited in the judgment).

The Court emphasised that the fundamental principle was that an EIA must be carried out for projects in respect of which the public or private developer is seeking development consent. Otherwise there would be difficulties in laying down what comprises “an entire project” when that concept is not the same as “a specific project in respect of which an application has been submitted”.

It was self-evident that the Directive could not indirectly have the effect of forcing a Member State to depart from the normal practice according to which long road links were executed by constructing sections over staggered periods.

It was also accepted that the purpose of the Directive should not be circumvented by presenting them in a form which rendered an Environment Impact Assessment meaningless.

All parties were satisfied that Apple had not sought to avoid the carrying out of an EIA by project splitting.

Although there was not EIA which subjected the likely effects of the possible future construction and operation of seven additional data centres nevertheless – it did not exclude consideration of their potential effects and the power likely to be required for same “as far as practically possible”.

The court held that that there was not any obligation to carry out an EIA of the entire masterplan which was not the subject of the planning permission application.

Future development

The court was satisfied that the Board considered the relevance of the masterplan development to the issues which arose during its consideration – in particular, the court considered its relevance to the determination as to whether the selection of the development site outside Athenry was justified.

Since any subsequent permissions in relation to any further phases of the development would require a full EIA on the full extent and effects of the extended permission sought; the court was satisfied that the Inspector and the Board understood that future permission would be required for an expanded development beyond phase one. This was one of the circumstances considered in the decision to grant permission.

Public interest

The court held that the High Court’s decision did not involve a point of law of exceptional public importance because the legal principle applicable to the facts of the case was clear and well established.

Furthermore, it was not “in the public interest that an appeal be taken having balanced the importance of the issues raised on behalf of the applicant, the importance of the project and the consequences of any likely delay”.

Finding that the application for leave to appeal made it clear that the applicants sought “to reargue aspects of the case”, Justice McDermott said it was clear that “much of this argument is based on the fact that the applicants disagree with the Inspector’s conclusions and disagree with the court’s application of the legal principles which govern the issues in this case as they are applied to the facts of this case”.

Finding that none of the points advanced “transcend the facts of this particular case”, Justice McDermott was not satisfied that the applicants met the criteria set out in the authorities for the certification of a point of law of exceptional public importance under s. 50A(7).