Monday 16 July 2018

Local residents ask High Court for appeal on Apple's plan to develop €850m data centre

The High Court, Dublin
The High Court, Dublin

Aodhan O'Faolain

Two local residents have asked a High Court judge to allow them appeal his decision clearing the way for tech giant Apple to develop the first phase of a planned €850m data centre in Athenry, Co Galway.

Sinead Fitzpatrick and Allan Daly, of Lisheenkyle, Athenry, claim the High Court wrongly found that An Bord Pleanala met its obligations by carrying out an environmental impact assessment (EIA) on Apple’s planning application for one data hall.

Because Apple’s “masterplan” for the entire development will include eight data halls, the Board was required to do an EIA of the masterplan, their counsel Michael McDowell SC said.

Although an inspector with the Board raised concerns about the energy demands of the entire date centre and its impact on Ireland’s obligations to reduce greenhouse gas emissions, the Board itself failed to take a position on that key issue, he said.

The Athenry site was selected because of its 500 acre size and the fact it could accommodate eight data halls and the project would not go ahead unless all eight were built in accordance with Apple’s masterplan, he said.

How was it permissible to go ahead with one eighth of a masterplan without a full assessment of the entire masterplan? he asked.

His side met the legal criteria entitling them to bring an appeal as they had shown the court’s judgment dismissing their case raised points of law of exceptional public importance which were desirable, in the public interest, for the courts to decide, he said.

Their points of law include the extent to which interdependence between various developments needs to be considered in deciding whether a particular development is a standalone one. Another point concerned the obligation under national and EU law to identify the main effects  of the development and the main measures to reduce or offset those.

Mr Justice Paul McDermott will hear closing arguments from  Mr McDowell tomorrow on the application for leave to appeal his judgment delivered earlier this month.

Opposing permission for an appeal, Nuala Butler SC, for the Board, said the proposed development was “unusual” as no such development had proceeded in Ireland before and it was also very significant for the East Galway area.

However, the legal issues raised were “not that unusual” and the court’s judgment raised no point of law of exceptional public importance entitling the applicants to appeal, she argued.

The Board had taken account of Apple’s overall masterplan although the masterplan was not the subject of the planning application, she said.  The masterplan was relevant to the Board’s consideration, including whether the Athenry site was appropriate.

The Board was not required to conduct a full EIA of the masterplan and the High Court had correctly found that was the case, she said.

The applicants had also failed to show an appeal was necessary in the public interest, she argued. Taking the matter further would delay the development and that was “not in the public interest”.

Rory Mulcahy SC, for Apple, endorsed Ms Butler’s arguments and said the applicants had failed to identity any error in the High Court’s judgment. Nor had they shown an appeal was necessary in the public interest, he argued.

Counsel for Brian McDonagh, whose separate challenge to the Apple permission was also rejected by the judge, told the judge he and solicitors had just been instructed in the case on Tuesday evening and wanted time to consider their position.

The judge said he had fixed this week to consider application for leave to appeal and Mr McDonagh should note that.

In his judgment on the case by Mr McDonagh, Ballymount Cross Business Park, Dublin, the judge found Mr McDonagh lacked the necessary legal standing to challenge the permission as he does not live close to the site and had not participated in the planning process.

Mr McDonagh should have disclosed at an early stage he was a director and shareholder of Ecologic Data Centre Ltd which had secured permission for a data centre on a Co Wicklow site considered as an alternative location for the Apple development, the judge added.

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