The High Court refused an application by Sinead Fitzpatrick and Allan Daly for a certificate to appeal the court’s earlier judgment in a judicial review concerning planning permission for an Athenry data centre project.
The application was made under section 50A(7) of the Planning and Development Act 2000. The provision allows an appeal only if the High Court certifies that its decision involves a point of law of exceptional public importance and that an appeal is desirable in the public interest. The judgment, delivered by Mr Justice McDermott on 1 November 2017, states that references to the Supreme Court in the provision are to be read as references to the Court of Appeal.
The applicants proposed five questions for certification. They concerned how environmental impact assessment should address a project forming part of a larger masterplan; the extent to which future phases should be considered; and whether the Board had adequately identified environmental effects, mitigation and its reasons. The underlying permission covered a first-phase data hall and ancillary services, along with an associated grid connection. The wider masterplan contemplated eight data halls.
The applicants argued that the effects of the wider development and its power demand should have been assessed. The court noted that the phase-one data hall’s maximum electricity demand was 30MW, expected to be needed from about 2023, while full capacity across the masterplan was anticipated between 2030 and 2035. These were submissions in the appeal-certificate application, not new findings on the planning permission.
The court said the governing legal principles were clear and well established, and that the proposed questions mainly concerned applying those principles to the facts of this case. It referred to its earlier conclusion that the Inspector and An Bord Pleanála had taken account, as far as practicable, of the project’s place in the larger plan. It had found no obligation to carry out an environmental impact assessment of the entire masterplan when that was not the subject of the permission application. The court said later phases would require further permission and a full assessment of their effects, including cumulative effects.
On the applicants’ fifth proposed point, the court said its earlier judgment had found that the Board’s decisions, read with the Inspector’s reports, adequately recorded the environmental assessment. It also found no legal uncertainty about the Board’s adoption of an Inspector’s report where it accepted the report and did not depart from its conclusions.
The court was not satisfied that any proposed point met the statutory requirements of exceptional public importance and desirability in the public interest. It refused the application. The ruling concerned permission to appeal the earlier judicial-review judgment; it did not grant a new planning permission or decide an appeal on the merits.