High Court: Court rejects application brought against proposed Apple data centre in Athenry

About this case:

• Judgment:
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Finding that the appropriate Environmental Impact Statement had been carried out, Justice McDermott stated that it would have been wrong for the Board to embark on speculation into future contingencies.

Background

In April 2015, Apple Distribution International applied to Galway County Council for planning permission for a development of a data centre in Athenry, Co. Galway.

This application was accompanied by an Environmental Impact Statement (EIS) and an Appropriate Assessment Screening Report (AASR).

In granting permission for the proposed development An Bord Pleanála stated that it had regard to those matters which it was obliged to take into account by statute and listed a number of reasons and considerations to which it had regard in coming to its decision.

The applicants, Ms Sinead Fitzpatrick and Mr Allan Daly, sought an order of certiorari quashing the determination of An Bord Pleanála to grant planning permission in appeal reference for the construction of a data centre and associated grid connection.

The applicants also sought a declaration that the decisions of An Bord Pleanála were in breach of Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment, and the related jurisprudence.

Obligation to Carry Out and Record EIA

Ground 1 claimed that the Board failed to record the Environmental Impact Assessment (EIA) that it purportedly carried out and provided no assessment, description or evaluation of the proposed development and/or its likely significant effects.

Rejecting this ground, Justice McDermott considered Ratheniska Timahoe and Spink (RTS) Substation Action Group v. An Bord Pleanála and Eirgrid plc. IEHC 18, and Edward Buckley v. An Bord Pleanála IEHC 572 and stated that Connelly v. An Bord Pleanála IEHC 322 did not alter the legal principles applicable to this issue.

Site Location

The applicants submitted that the proposal for Phase 1 was really a part of a larger development, and the implications of the additional energy generation required to serve the development of the grid had not been covered in the EIS. It was noted that the scale of development was unprecedented and should have been the subject of phasing.

The Inspector appointed by An Board Pleanála considered the submissions that the area of the site could be reduced by way of a more efficient layout which could render alternative site options viable. However, he was satisfied that the site size proposed was not excessive.

Justice McDermott was satisfied that the issue of site location was regarded as fundamental by the Inspector and the Board, and therefore rejected this element of the applicants grounds.

Energy Requirements and Supply

The Inspector’s report contains a detailed analysis of the “energy demand climate change and sustainability” effects of the proposed development. The inspector considered the potential impact effect on climate that would arise in the case of power supply if the one hundred percent renewable source was not achieved by Apple and it was instead supplied from the grid; and the potential environmental impact of the additional phases of development that might take place in the future.

The applicants submitted that the planning permission for the single data hall would not have been granted in respect of Phase 1 if it were not part of the wider project to construct and operate eight data halls on the site in the future; and therefore submitted that the EIA for the project ought to have included an assessment of the impacts of the construction of the eight halls.

While not accepting that an EIA on the entire masterplan development was required, the respondents submitted that the overall effect of the masterplan (insofar as it could be taken into account) was considered appropriately by the Board

In any case, on the correct interpretation of Advocate General Gulmann’s opinion in Case C-396/92, “an EIA is not mandatory for anything other than the specific projects submitted by a developer to the competent authority in order to obtain authorisation to carry out construction”

Justice McDermott was satisfied that the development of the first phase was not a development which could only properly be considered as part of a larger masterplan, and emphasised that it was not inevitable that it will be part of a more substantial development.

The approach adopted by the Board and the Inspector was in accordance with the principles and purpose of the EIA Directive, the opinion of the Advocate General in Case C-396/92, the approaches adopted in Bowen-West and in Friends of the Curragh Environment Ltd; and was distinguishable from the functional and interdependent situations considered in the cases of O’Grianna and An Taisce.

Justice McDermott was satisfied that an appropriate EIA was carried out. The documentation clearly established that the Inspector and the Board assessed the cumulative impacts which were likely to arise from the completion of the two projects under consideration.

Rejecting all grounds advanced, the Court refused the application.

In a separate judgment, Justice McDermott found that Mr Brian McDonagh did not have locus standi to bring the proceedings.