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
and
[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
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 |
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”.
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.
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.
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
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...
To continue reading
Request your trial-
Patrick McCaffery and Sons Ltd v an Bord Pleanála
...expert decision-making body and as confirmed in numerous cases including that relied upon by the Respondent, Coyne v. An Bord Pleanála [2023] IEHC 412. In Cork Harbour Alliance, as Barniville J. made clear, in respect of adequacy of information, only irrationality or a lack of proportionali......
-
Donegal County Council v Planree Ltd and Another
...response §6. 153 Fitzpatrick v An Bord Pleanála, Galway County Council And Apple, [2019] 3 IR 617; Coyne v An Bord Pleanála & Enginenode [2023] IEHC 412. 154 Or “wind 155 Non-Technical Summary P II. 156 Later 90mw – see above. 157 See below. 158 Save Cork City v An Bord Pleanála [2022] IESC......
-
Save Roscam Penisnsula CLG and Others v an Bord Pleanála and Others
...review is not a mechanism for a merits-based scrutiny of the EIA process: per Holland J. in Coyne & Anor v. An Bord Pleanála & Others [2023] IEHC 412, [2023] 7 JIC 2104 at §414, per Holland J. in Fernleigh Residents Association & Anor v. An Bord Pleanála & Others [2023] IEHC 525 at §303, pe......
-
Kelly v an Bord Pleanála
...say that the applicant can't make this point because she didn't raise it before the board ( Coyne & Anor. v. An Bord Pleanála & Others [2023] IEHC 412, [2023] 7 JIC 2104 per Holland J), they didn't press that to the extent of saying that the applicant was precluded from advancing the point ......