Sunday 15 September 2019

Supreme Court to decide later on Apple data centre appeal

An artist’s impression of the Apple data centre that was originally planned for Athenry in Co Galway
An artist’s impression of the Apple data centre that was originally planned for Athenry in Co Galway

Aodhan O'Faolain

The Supreme Court will decide later whether to proceed with hearing an appeal concerning An Bord Pleanala’s approval for the first phase of a €850m data centre for tech giant Apple in Co Galway.

While Apple has announced it has decided not to proceed with the centre at Athenry, Oisin Collins BL, for the objectors, Sinead Fitzpatrick and Allan Daly, said the appeal raises important legal issues relevant to similar projects which  should be decided.

The disputed planning permission also remains extant, the court heard.

Nuala Butler SC, for An Bord Pleanala, said she would take instructions whether it will argue the appeal is moot or pointless given Apple’s decision not to build.

If the Supreme Court decides to proceed with the appeal, the State and environmentalist Peter Sweetman will also ask the court to be permitted to intervene.

Garret Simons SC, for the State, said, if the appeal is proceeding, the State wished to intervene in support of the Board’s position.

Mr Collins, for the appellants, said he had been told by Mr Sweetman he wished to intervene because he had raised similar concerns as the objectors in this case in relation to a development by Amazon.

Ms Butler said there would be a "very strong objection" by her side to Mr Sweetman being permitted to intervene. There was precedent for the State to intervene in matters where there is a public interest, she added.

Earlier, Rory Mulcahy SC, for Apple, confirmed it had decided not to proceed with the development.

The Chief Justice, Mr Justice Frank Clarke, made directions for motions to be brought setting out the positions of the sides and adjourned the matter to May 31st for further directions.

Apple’s announcement it is not proceeding comes after the Supreme Court last week said it would hear the appeal by Mr Daly, of Athenry, and Ms Fitzpatrick, who lives close to the site.

The court also indicated it may be necessary to make a preliminary reference of issues to the Court of Justice of the EU (CJEU).

The court said one of the matters to be considered is whether a point of law arises concerning the application of broad general principles of EU law in particular cases and, if so, whether the court was obliged to refer issues to the CJEU.

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 court said.

It said there may be a point of law of general public importance concerning the application of the relevant broad general principles of EU law to this category of case. 

If such a point does arise, the court would then have to consider whether it must make a reference to the CJEU concerning provisions of the EU Treaty applying to a court of final appeal.

The applicants sought a Supreme Court appeal after the High Court's rejection of their case last October. They argued the Board was legally obliged to carry out an environmental impact assessment (EIA) of Apple’s entire “masterplan” for eight data halls, which would increase total demand on the national grid by 6-8 per cent, and not an EIA of just one hall.

The overall grid connection planned at Athenry would have a footprint equal to Dundrum town centre but there is no national assessment and no strategic assessment concerning how data centres being built across the country will be supplied with energy, they said.

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