Friday 19 July 2019

Law 'radically misapplied' by An Bord Pleanála for first phase of €850m Apple data centre - Supreme Court hears

Stock photo: Reuters
Stock photo: Reuters

Tim Healy

The law was "radically misapplied" by An Bord Pleanála in the way it granted permission for the first phase of tech giant Apple’s planned €850m data centre in Athenry, Co Galway, the Supreme Court has heard.

The Board cannot permit a "salami-style slicing and dicing" of major projects so as to avoid "hard questions" and a "genuine" environmental impact assessment of those, particularly the impact of their energy demands, Michael McDowell SC argued.

While Apple has since decided not to proceed with the Athenry centre, a five judge Supreme Court on Monday began hearing an appeal by two objectors addressing a range of legal issues arising from how the Board dealt with the company’s proposal.

The court's decision is expected to impact on how the Board deals with similar projects.

The appeal is by Sinead Fitzpatrick, who lives close to the planned development, and Allan Daly, of Athenry. It is opposed by the Board and the State but Apple is not involved.

The Supreme Court is considering a range of issues arising from the High Court’s rejection of the objectors case.

It will consider whether a point of law arises concerning the application of broad general principles of EU law in particular cases and, if so, whether it should refer issues to the Court of Justice of the EU.

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 objectors have claimed eight data halls would increase the total demand on the national grid by between six and eight per cent and the overall grid connection planned at Athenry would have a footprint equal to Dundrum town centre.

In submissions,  their counsel Mr McDowell said, despite accepting its own inspector’s report, the data centre would be unsuitable for the Athenry site unless all eight proposed data halls were built. The Board conducted an environmental impact assessment (EIA) for just one hall, not eight.

Without assessing whether this was a sustainable development from an energy point of view, the inspector took the view the employment considerations outweighed whatever doubt exists on the energy front, he said.

The government has set no national guidelines in relation to sustainable energy requirements, he noted.

The court was told the Industrial Development Authority had claimed about 300 construction workers would be engaged on the project and it would involve total investment of about €850m over the estimated 15 years it would take to build all eight data halls.

If jobs are to be weighed against energy issues, there must be an effort to balance out the two and there was no such effort here, Mr McDowell argued.

While Apple had said the centre would be powered by 100 per cent renewable energy, the inspector had concluded the best that could be secured was average renewability figures over the 15 years.

The issue remains relevant for reasons the Sustainable Energy Authority says we must reduce energy consumption and other data centre developments are proposed, he added.

The appeal continues.

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