Apple data centre objectors seek appeal

By Ann O'Loughlin

An Bord Pleanala’s approval for the first phase of tech giant Apple’s planned €850m data centre in Co Galway “turned European law on its head” and took no account of Ireland's climate change obligations, the Supreme Court has been told.

A three-judge court has deferred its ruling on whether two objectors to the centre have met the necessary legal test to bring an appeal to the Supreme Court aimed at quashing the Board's approval.

Having heard arguments on the appeal application today, the Chief Justice, Mr Justice Frank Clarke, sitting with Mr Justice John MacMenamin and Ms Justice Elizabeth Dunne, said the court will publish a written decision in due course.

Before any appeal can be brought to the Supreme Court, it must find the case raises a legal issue of general public importance, or an appeal is desirable in the interests of justice.

The leave application by Sinead Fitzpatrick, who lives close to the planned development, and Allan Daly, of Athenry, is opposed by the Board and Apple. The application follows the High Court's rejection of their case last October.

Oisín Collins BL, for the objectors, said the Board was legally obliged to carry out an environmental impact assessment (EIA) of Apple’s entire “masterplan” for eight data halls, which will increase total demand on the national grid by 6-8%, 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, he said.

Something has "gone badly wrong" when the State's planning board was contending the entire Apple development may not be built until the 2030s, so it was therefore not appropriate for the court to look 20 years into the future, he said.

The whole purpose of planning is planning, and an assessment of an overall development which will increase the national power demand by 6-8% is, for reasons including Ireland's obligations to reduce emissions, of "the greatest public importance".

The appropriate legal test made clear, in assessing such a development, there must be an assessment of the entire development, he said. That has not been done, and no proper explanation was provided by the Board for that.

The Board's approval "turned European law on its head", the facts of this case were unique, and an appeal should be permitted, he urged.

Nuala Butler SC, for the Board, argued the objectors had raised no legal point of sufficient general public importance such as entitled them to an appeal. There was no dispute about the applicable law, and the objectors' essential complaint was they did not like how the law was applied, she said.

She said the Board’s permission was for one data hall and the associated electrical infrastructure for that and the Board did not carry out an EIA for eight data halls because it was dealing only with an application for permission for one.

The Board would assess any future applications for the seven other halls when those were made, and some might not happen until 2030, she said. There was no legal requirement to conduct an EIA on something that may not be built for 20 years.

Rory Mulcahy SC, for Apple, maintained the objectors had raised no point of law entitling them to an appeal. There is no uncertainty about the relevant law, he said.

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