By Ann O'Loughlin
Two local residents have applied to the Supreme Court to permission to bring an appeal over the High Court's rejection of their challenge to permission for tech giant Apple to develop the first phase of a planned €850m data centre in Athenry, Co Galway.
Before any appeal can be brought to the Supreme Court, that court must find the case raises a legal issue of general public importance or it is desirable in the interests of justice that an appeal be brought.
Sinead Fitzpatrick and Allan Daly, Lisheenkyle, Athenry, lodged their application for permission to appeal with the Supreme Court on Friday. It is expected their application will be opposed by An Bord Pleanála and Apple.
Members of the court will meet at a later date to consider the written document from the sides after which they will issue a published determination outlining their decision on whether to permit an appeal.
The High Court last October rejected the challenge by Ms Fitzpatrick and Mr Daly, whose concerns about the planned development, intended to include eight data halls on completion within 15 years, included its considerable energy demands.
The data centre development will increase demand on the national grid by 6-8 per cent, the court heard. If other planned data centres are built around the country, the increased demand could rise to 32 per cent.
Although a Board inspector raised concerns about the energy demands, and their impact on Ireland’s obligations to reduce greenhouse gas emissions, the Board itself failed to take a position on that key issue, the applicants claimed.
Mr Justice Paul McDermott later refused to certify that his judgment on the case raised points of law of exceptional public importance entitling the couple to appeal to the Court of Appeal.
Any litigant may apply for a Supreme Court appeal but their case must meet the criteria set by that court for an appeal.
When seeking the High Court's permission to appeal, Michael McDowell SC, for the residents, argued it was a matter of “dramatic public importance” the disputed permission was granted by An Bord Pleanála in a manner that “sliced and diced” the overall proposed development.
The applicants claimed the High Court wrongly found the Board met its obligations by carrying out an environmental impact assessment (EIA) on Apple’s planning application for one data hall. They said the Board was required to do an EIA of the masterplan for eight data halls.
If developments can be broken down and sliced and diced in this way, this was of “dramatic public importance” across the planning spectrum, including for motorways and other major projects, Mr McDowell argued.
Points of law raised by the applicants included the extent to which interdependence between various developments needs to be considered in deciding whether a particular development is a standalone one. Another point concerned the obligation under national and EU law to identify the main effects of the development and the main measures to reduce or offset those.