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

JurisdictionIreland
JudgeMr. Justice Holland
Judgment Date21 July 2023
Neutral Citation[2023] IEHC 412
CourtHigh Court
Docket NumberRecord 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...

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