Fitzpatrick and Daly v An Bord Pleanala [2017] IEHC 585

In October 2017, the Commercial Court dismissed a judicial review application which sought to quash An Bord Pleanala's decision to grant the Apple technology company planning permission for the construction of a data storage centre together with an electricity substation and associated infrastructure on a site near Athenry, County Galway.

In April 2015, Apple had originally sought consent from Galway County Council for the development of the initial phase of its plans for the Athenry site. Under those plans, the data storage centre the subject of these proceedings was intended to be the first part of a much larger development project which would eventually involve the construction of seven further data centres at the site over an approximate 15 year period. Apple’s plans for Athenry form part of a global strategy for the development of data storage and processing facilities in response to a huge rise in the levels of electronic communications and "on demand" computing. A similar data centre at Viborg, Denmark, has already been constructed and is shortly due to commence operations.

As part of this High Court challenge, the Applicants contended that there had been a failure to carry out a proper environmental impact assessment (EIA) in respect of the proposed development. In particular, it was suggested that in conducting its EIA, An Bord Pleanala was obliged not only to assess the environmental impacts of the data centre for which planning permission was sought but was additionally required to undertake an EIA in respect of the development of Apple’s full masterplan for the site. The Applicants also asserted that the Respondent had given inadequate consideration to the suitability of the site chosen, the likely energy requirements of the data centre and its impact on climate change.

In rejecting the Applicants’ case, the Court found that the obligation on the Respondent to conduct an EIA was limited to the single data centre for which planning permission had been sought. It was not required to subject the entirety of Apple's masterplan for the site to an EIA since the disputed planning decision only concerned phase one of the overall development proposal. In the event that Apple chose to develop additional data centres at the Athenry site, it would have to obtain further planning permission which in turn would necessitate carrying out a new EIA.

Relying on Irish and European case law, the Court noted that this first data centre was capable of existing as an independent, standalone development with its own infrastructure. Its operation was not therefore in any way “functionally dependent” or contingent on Apple deciding to proceed with the remaining elements of its masterplan.

In the Court’s view, given the uncertainty around the timing of any future construction and the possibility both for improvements in technology and a shift in national climate change policy, a full assessment of the potential environmental impacts of the balance of Apple's masterplan was more properly a matter for a separate EIA which would take place on foot of a further planning application. In any event, to the extent that it was reasonable and practicable to do so, the Respondent and its inspector had taken account of the impacts which might arise from later phases of the development at the Athenry site. An Bord Pleanala's approach to the EIA undertaken was therefore consistent with the principles and objectives underlying the EIA Directive.

While the Commercial Court's decision in this case has been broadly welcomed, concerns have been expressed about the length of time taken for Apple's plans to emerge from the planning process. Those concerns have now increased following Apple's recent refusal to commit to proceeding with the Athenry data centre. In response, and with a view to improving the efficiency of the planning system, the Government has announced plans to amend the Planning and Development Act 2000 so that all future planning applications for the construction of large scale data centres will be made directly to An Bord Pleanala. A Private Members’ Bill, the Planning and Development (Strategic Infrastructure) (Amendment) Bill 2017 has also been published which would provide for a similar change in legislation.

Both Applicants have now lodged an appeal directly with the Supreme Court following the trial judge's refusal to grant leave to appeal. The Supreme Court will undertake an initial examination of the Applicants' written appeal papers before deciding whether to permit an oral hearing. To allow the matter to proceed to a full hearing, the Supreme Court must be satisfied that the Appellants have raised a point of law of general public importance or one which it is necessary to determine in the interests of justice.