Coyne and Another v an Bord Pleanála and Others; Coyne and Another v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Holland
• Judgment Date: 21 July 2023
• Neutral Citation: [2023] IEHC 412
• Court: High Court
• Docket Number: Record No. 2021/780 JR

In the matter of Order 84 of the Rules of the Superior Courts and in the matter of the Planning and Development Act 2000

Between

Mannix Coyne and Anne Coyne

Applicants

and

An Bord Pleanala, Ireland and The Attorney General

Respondents

and

Enginenode Ltd

Notice Party

[2023] IEHC 412

Record No. 2021/780 JR

Record No. 2021/781 JR

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT OF Mr. Justice Holland DELIVERED 21 JULY 2023

Contents

INTRODUCTION	5
POLICY IN DECISION-MAKING — THE “HAVE REGARD TO” OBLIGATION	8
Introduction — s.143 PDA 2000 & s.15 of the Climate Act 2015	8
The “have regard to” obligation	9
The “have regard to” obligation — s.15 of the Climate Act 2015 & the Dublin Airport Runway case 2017	18
The “have regard to” obligation — Failed & Failing Policies — Decision on an Issue Argued	19
CLIMATE CHANGE & DATA CENTRES — GENERAL INTRODUCTION, LEGISLATION & POLICY	21
The EIA Directive 2014, S.171A PDA 2000 & Climate Change	22
Climate Action and Low Carbon Development Act 2015, & the National Mitigation Plan 2017	25
National Planning Framework — February 2018	27
The Data Centre Statement — June 2018	28
Eastern & Midlands Region Regional Spatial & Economic Strategy June 2019	31
Climate Action Plan — June 2019	31
Post-June 2019 — Policy & Progress Reports	36
Comment on the Foregoing, Climate Change & Data Centres, Separation of Powers & FIE v Ireland	37
THE IMPUGNED DECISIONS	40
Data Centre — EIA	41
Data Centre — Proper Planning & Conditions	41
The Grid Connection	42
INSPECTOR'S REPORTS	42
Inspector's Report 28 May 2021 — Data Centre	43
MODULES A, B & C	45
MODULE A — GROUNDS 4, 5, & 6 — CO 2 EMISSIONS & EIA	45
G4, 5, & 6 — CO 2 Emissions & EIA — Introduction	45
G4, 5, & 6 — ETS, Non-ETS/ESR, National Fuel Mix, Incentives and Policy	47
G4, 5, & 6 — EU Climate Change in EIA Guidance 2013	48
G4, 5, & 6 — The EIARs as to GHGs, CO 2 & Climate Change	51
The Original Data Centre EIAR — October 2019	51
EngineNode's Responses to Appeals — 12 August 2020	53
EIAR Addendum August 2020 (Data Centre)	56
G4, 5, & 6 — Inspector's Reports	58
GROUND 4 — CLIMATE ACT 2015 — “HAVE REGARD TO”	63
G4 — Climate Act 2015 — Pleadings	63
G4 — Climate Act 2015 — Discussion & Conclusion	65
GROUND 5 — EIA — CO 2 EMISSIONS	67
G5 — EIA — CO 2 Emissions — Pleadings	67
G5 — EIA — CO 2 Emissions — Submissions	69
G5 — EIA — CO 2 Emissions — Discussion & Decision	70
“Climate” in the EIA Directive	70
Indirect & Cumulative Effect — Programmatic Measures	71
G5 — EIA — CO 2 Emissions — Decision	91
G5 — EIA — CO 2 Emissions — Goesa	91
GROUND 6 — EIA — HUMAN RIGHTS	92
G6 — EIA & Human Rights — Pleadings	92
G6 — EIA & Human Rights — The Coynes' Submissions	93
G6 — EIA & Human Rights — Submissions of the Board & EngineNode	94
G6 — EIA & Human Rights — Submissions of the State	95
G6 — EIA & Human Rights — Evidence & Comment thereon	96
G6 — EIA & Human Rights — Discussion & Decision	99
G6 — Introduction	100
G6 — Human Rights — New Arguments — M28, Highlands Residents, Reid, East Donegal	102
G6 — Human Rights — New Arguments — Decision	104
G6 — Remedy for Breach of ECHR Rights — Pullen 2009	105
G6 — Substantive & Procedural Human Rights — Introduction.	105
G6 — Fox 2021	107
G6 — Pavlov — 2022, Fadeyeva 2005 & Aarhus 1998	108
G6 — Outpacing the ECtHR — McD v PI, BPSG, & Fox	112
G6 — Articles 2 & 8 ECHR & Caselaw	114
G6 — Dublin Airport Runway case (Merriman) 2017 & Simpson 2019	118
G6 — FIE v Ireland 2020, Urgenda 2019 & Milieudefensie 2021	120
G6 — Conclusion — personal right to a healthy environment (and Articles 2 & 8 ECHR)	124
G6 — Constitutional Rights — Standing — Cahill v Sutton, Mohan, O'Doherty & Waters, Grace, FIE	125
G6 — EIA & Breach of Constitutional rights — Conclusion as to Standing	130
G6 — EIA & Breach of Constitutional rights — Standard of review — Burke 2022	130
G6 — EIA & Human Rights — Conclusion	132
MODULE B — GROUND 3 — OMISSION OF ENERGY CENTRE & CONDITION 4	133
G3 — Omission of Energy Centre — Introduction	133
Figure 1 Original Layout	134
Figure 2 Revised Layout — Energy Centre Omitted	135
G3 — Omission of Energy Centre — Inspector' Report	135
G3 — Omission of Energy Centre — The Coynes' Challenge	136
G3 — Omission of Energy Centre — The Board's & EngineNode's' Opposition	137
G3 — Omission of Energy Centre — Discussion and Decision	138
G3 — Omission of Energy Centre & Landscaping — Boland Conditions — Discussion and Decision	139
G3 — Omission of Energy Centre — Article 6(4) of the EIA Directive	140
G3 — Omission of Energy Centre — Conclusion	141
MODULE C — PROJECT-SPLITTING — GROUND 1 OF BOTH JUDICIAL REVIEWS	141
G1 — Project-Splitting — Introduction, An Taisce Data Centre Appeal & EngineNode's Response	141
G1 — Project-Splitting — Grid Connection Approval Application	142
Figure 3 Grid Connection — Substation & Cable Routes	142
G1 — Project-Splitting — Grid Connection EIAR, Data Centre Addendum EIAR & AA Screening Reports	143
G1 — Project-Splitting — Inspector's Reports 28 May 2021 & Board EIAs	147
G1 — Project-Splitting — the Coynes' case & the Opposition	148
G1 — Project-Splitting — Discussion & Decision	150
G1 — Project-Splitting — Cable Routes Depiction Error	151
G1 — Project-Splitting — Was Assessment of Cumulative Effects done?	151
G1 — Project-Splitting — EIA of the Project as a Whole and Distinct Processes	152
G1 — Project-Splitting — the Concept in EIA — what does the EIA Directive Require?	153
G1 — Project-Splitting — Adequacy of Information and Conclusion	163
CONCLUSION	164

INTRODUCTION 1

1 This is my judgment in a pair of judicial reviews in which the Applicants (“the Coynes”) seek to quash decisions (“the Impugned Decisions”) of the First Respondent (the “Board”), both made by orders dated 5 July 2021, to grant to the Notice Party (“EngineNode”) under

• S.37 PDA 2000, 2 on appeal from the decision of Meath County Council, planning permission for development of a data centre and associated development (“the Data Centre”) on a 24.5ha site at Bracetown & Gunnocks, Clonee, Co. Meath (“the Site”).

• S.182A PDA 2000, 3 approval for development, as strategic infrastructure, of a 220kV substation on lands of about 3.6ha adjacent to and south of the proposed Data Centre site,

2 underground transmission cable connections 4 to the national electricity grid (the “national grid”) and associated development (“the Grid Connection”).

I will refer to the Data Centre and the Grid Connection collectively as the “Proposed Development”.

2 The Meath County Development Plan 2013–2019 applies. All relevant lands and the surrounding lands, save for parts of the underground transmission cable routes are, by that plan, zoned “E2/E3” to “ provide for the creation of enterprise and facilitate opportunities for employment through industrial, manufacturing, distribution, warehousing and other general employment / enterprise uses in a good quality physical environment. To facilitate logistics, warehousing, distribution and supply chain management inclusive of related industry facilities which require good access to the major road network.” That the Proposed Development is suited to the zoning is not disputed. Another “ Runway Information Service/Facebook” data centre lies nearby to the east.

3 The Coynes live adjacent the Proposed Development, with which their residence will share a boundary to their east and north. 5 Mannix Coyne is a building contractor and runs an equine business at his family home. He pleads that he will suffer significant impacts by way of loss of residential amenity, loss of privacy, noise, nuisance and serious disturbance of his equine business. Ann Coyne is his daughter and is a national school teacher. They and Mr Coyne's wife objected to the Proposed Development in the planning process.

4 EngineNode's application to Meath County Council (“the Council”) for planning permission for the Data Centre was for a development including an on-site gas-powered energy centre to power the Data Centre (the “Energy Centre”). The application included an EIAR. 6 The Council did an EIA 7 and decided to grant permission. The Coynes and others 8 appealed to the Board. In response to these appeals, EngineNode decided to source electrical power for the Data Centre from the national grid instead of generating it on-site. So, EngineNode by its response dated 12 August 2020 to the appeals, while not formally withdrawing the planning application as it related to the Energy Centre, advised the Board that it would be acceptable were the Board to omit the Energy Centre from the Data Centre development and instead grant approval under s.182 PDA 2000 for the Grid Connection. For that approval it applied to the Board directly by application dated 7 September 2020. 9 In that context, EngineNode submitted an Addendum to its Data Centre EIAR (the “Data Centre

Addendum EIAR” 10) and an EIAR for the Grid Connection (the “Grid Connection EIAR”). EngineNode's documents in each process cross-referenced the other. No likely significant adverse impacts were identified in the EIARs

5 The Board allocated both files to the same Planning Inspector (the “Inspector”), who reported to the Board on each. The Board considered both applications together at its meetings of 11 May 2021, 19 May 2021 and 23 June 2021 and made both Impugned Decisions together at its meeting of 23 June 2021. It did so generally in accordance with the Inspector's recommendations and it did an EIA in each...