Fitzpatrick & anor v An Bord Pleanala & ors, [2018] IESC 60 (2018)

Docket Number:157/17

THE SUPREME COURTRecord No. 157/17

Clarke C.J.

O’Donnell J.

MacMenamin J.

Dunne J.

Finlay Geoghegan J.


Sinead Fitzpatrick & Alan DalyApplicants/Appellantsand

An Bord PleanálaRespondentand

Galway County Council and Apple Distribution InternationalNotice Partiesand

The Minister for Housing, Planning and Local Government, Ireland and

the Attorney GeneralAmici Curiae

Judgment of the Chief Justice, Mr. Justice Clarke delivered the 5th December, 2018

1. Introduction

1.1 The plan by the second named notice party (“Apple”) to develop a data centre near Athenry, Co. Galway, and in particular this legal challenge to the validity of the permission granted for part of that development by the respondent (“the Board”), has attracted no little controversy. Ultimately, Apple have decided not to go ahead with the development, but the fact remains that there is an apparently valid permission granted in respect of the development which would inure to the benefit of the owner of the lands or, indeed, any purchaser. In those circumstances, the question of the validity of the permission granted remains alive.

1.2 The applicants/appellants (“the applicants”) challenged the validity of the permission granted by the Board in the High Court. It will be necessary to say a little more about what occurred in the High Court in due course. However, ultimately that challenge failed and the applicants sought leave to appeal to this Court. That leave was granted at a time prior to the announcement by Apple that it no longer intended to go ahead with the development for which permission had been granted. In those circumstances, the Court put in place urgent measures designed to ensure an early hearing of the issues. In particular, the appeal was listed for case management at a very early stage.

1.3 However, there were a number of developments at the beginning of the case management process, not least the announcement by Apple that it no longer intended to go ahead with the development and that, in those circumstances, it no longer wished to participate in the proceedings. Similarly, the Attorney General and the Minister for Housing, Planning and Local Government (“the State”), who had not participated in the proceedings before the High Court, applied to be permitted to be heard on the appeal.

1.4 More importantly, for present purposes, two questions immediately emerged in the course of case management. The first was a contention, made principally by the Board, which was to the effect that the grounds which the applicants now sought to put forward on this appeal for challenging the permission granted to Apple were inconsistent with, or at least different from, the grounds pursued in the High Court. In those circumstances, a clear issue arose as to the scope of the appeal which could legitimately be pursued before this Court.

1.5 Similarly, a question was raised as to whether it would be appropriate for the Court, as a preliminary matter, to refer a question or questions of European law to the Court of Justice of the European Union (“CJEU”) for its opinion, on the basis that, it was suggested, a resolution of at least some issues of European law might be necessary to the final resolution by this Court of this appeal.

1.6 Having regard to Apple’s stated position, the immediate exceptional urgency which might otherwise have attached to this appeal had disappeared and, against that background, it was decided that the appropriate course of action to adopt would be to list the appeal for an initial consideration of two issues, being:-

  1. The scope of the appeal which could legitimately be pursued; and

  2. Whether it is appropriate, at this stage, to refer a question or questions to the CJEU.

1.7 Directions were given, with written submissions being filed by respectively the applicants, the Board and the State. As the State had not been a party to the proceedings before the High Court it was quite properly intimated on behalf of the State that the primary question which the State sought to address concerned the possible reference to the CJEU. Thereafter, an oral hearing ensued and this judgment is directed to the two issues identified in the light of the arguments put forward both in the written and oral procedure.

1.8 It is, perhaps, first important to set out in a little more detail the procedural history of this case so as to identify precisely how the issues which now come to be decided were before the Court. In that context, it is important to emphasise that the remainder of the issues which potentially arise on this appeal were not the subject of the initial hearing and remain for later consideration.

2. Procedural History

2.1 The applicants were granted leave to apply for judicial review in the High Court. Two reliefs were sought. First the applicants sought an order of certiorari quashing two determinations of the Board, both made on the 11th August 2016, to grant planning permission in respect of the construction of a data centre and associated grid connection at Athenry, Co. Galway. Second, the applicants sought a declaration that the decisions of the Board were in breach of Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment, and related jurisprudence (“the EIA directive”).

2.2 The applicants set out 13 grounds on which the above relief was sought. Broadly speaking, these grounds related to the alleged failure of the Board to carry out and record a proper environmental impact assessment (“EIA”) of the proposed development as well as related issues concerning the electricity demands required if the entire masterplan of eight data centres were to be implemented. It is worth highlighting some of the broad common themes arising in the grounds on which relief was sought by the applicants. It was argued that the Board had failed, in a variety of contexts, to take into consideration the fact that the application in question was part of a broader masterplan which envisaged the construction of eight data centres. Similarly, arguments were raised to the effect that, in adopting a report of an Inspector, the Board had failed to reach or record decisions in relation to certain matters which were said not to be conclusively determined in that report. This is, of course, not an exhaustive enumeration of the arguments raised in the High Court.

2.3 The High Court (McDermott J.) (Fitzpatrick and anor. v. An Bord Pleanála and ors. [2017] IEHC 585) refused to grant the reliefs sought having rejected the arguments raised by the applicants. In a separate judgment, McDermott J. refused to grant a certificate for leave to appeal that decision to the Court of Appeal under s. 50A(7) of the Planning and Development Act 2000 (as amended) (“the 2000 Act”) (Fitzpatrick and anor. v. An Bord Pleanála and ors. [2017] IEHC 644).

2.4 On the 1st December 2017, the applicants applied for leave to appeal directly to this Court from the decision of the High Court refusing the reliefs sought. On the 9th February 2018, a brief oral hearing was held before this Court in relation to the application for leave to appeal. At the request of the applicants, the parties were permitted to submit further brief written submissions subsequent to the oral hearing. By determination dated the 26th April 2018, (Fitzpatrick & anor. v. An Bord Pleanála & ors. [2018] IESCDET 61), this Court granted leave to the applicants to appeal from the decision of the High Court. The basis on which leave to appeal was granted was set out at paras. 8 to 10 of the determination in the following terms:-

“At this point the Court is not persuaded that it can safely be said that there might not be a point of general importance concerning the application of the broad general principles identified in the case law to a category of case such as this. In saying so the Court would wish to emphasise that it is not, at this stage, to be taken as in any way indicating that such a point necessarily arises but rather that one of the matters which the Court will have to consider is whether such a point arises and whether, if that be so, this Court is obliged to make a reference to the Court of Justice under the CILFIT jurisprudence. The Court would emphasise that the CILFIT jurisprudence places a significant obligation on a court of final appeal in cases such as this.

In those circumstances the Court will grant leave to appeal. However, in the light of the assertion by An Bord Pleanála that some of the grounds sought to be relied on are new grounds not previously advanced and the contention of the Board that such grounds should not, therefore, be permitted to be argued, the Court will make certain specific directions for the further and expeditious conduct of this appeal. In addition, and to the same end, the Court is aware that these proceedings have taken some time and is anxious that they proceed with all due expedition.

With that in mind the Court will direct that any notice of intention to proceed must be filed within seven days of this determination. It should be clear that a failure to serve a notice of intention to proceed within that timeframe will result in the leave to appeal hereby granted lapsing. Furthermore, the Court will arrange, on the assumption that a notice of intention to proceed is filed within that timeframe, for an early case management hearing which will take place prior to the filing of written submissions (and will vary the standard directions contained in the statutory practice direction to that effect). Amongst other things the Court will wish to be addressed at that first case management hearing on:-

(a) The scope of the grounds of appeal which ought properly be permitted to be pursued on this appeal having regard to the way in which the case was fought in the High Court;

(b) Whether the Court should direct an early and preliminary hearing on the question of whether it is necessary, in the context of the CILFIT...

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