The Supreme Court has ruled that two applicants may argue on appeal that An Bord Pleanála should have assessed environmental effects from the wider plan for an Apple data centre near Athenry, while limiting the challenge to the environmental assessment process. It declined to refer questions to the Court of Justice of the European Union at this preliminary stage.
The judgment, delivered by Chief Justice Clarke on 5 December 2018, concerns two permissions granted on 11 August 2016: one for a data centre and one for a 220 kV substation to serve it. Apple’s application for the data centre covered one facility, though its site masterplan envisaged that seven more might potentially be built.
Sinead Fitzpatrick and Alan Daly had challenged the permissions in the High Court, arguing that the Board failed to carry out a proper environmental impact assessment, including in relation to the wider masterplan and its electricity demands. The High Court refused their requested relief. The Supreme Court later granted leave to appeal.
At this preliminary hearing, the Board argued that some points the applicants sought to raise were new. The Supreme Court held that the applicants may pursue their original argument for an assessment of the entire masterplan, subject to practical limits, and may also make a fallback argument for a lesser assessment that exceeds what the Board carried out. The Court said the Board would not be prejudiced by considering the extent of that obligation.
The permitted appeal is confined to whether the environmental impact assessment fell short of the Board’s obligations concerning the remainder of the masterplan. The applicants may not challenge the Board’s decision as independently invalid, except insofar as they argue that an inadequate assessment requires it to be quashed.
The Court did not decide whether the permissions were valid or whether the assessment was adequate. It also did not decide the substantive grounds of appeal. It declined to make an EU law reference then, finding it was not clear whether a question of EU law requiring referral would arise. That question remains open after a full hearing. The Court proposed early further case management, including that the applicants consider adjusting their appeal grounds to fit the limits set out in the judgment.