Fitzpatrick v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay
• Judgment Date: 11 April 2019
• Neutral Citation: [2019] IESC 23
• Docket Number: [Appeal No: 157/2017],[S.C. No. 157 of 2017]
• Court: Supreme Court
• Date: 11 April 2019

Between

Sinead Fitzpatrick

&

Alan Daly

Applicants / Appellants

and

An Bord Pleanála

Respondent

and

Galway County Council

and

Apple Distribution International

Notice Parties

and

The Minister for Housing, Planning and Local Government, Ireland

and

the Attorney General

Amici Curiae

[2019] IESC 23

Finlay Geoghegan J.

Clarke C.J.

Kelly P.

O'Donnell Donal J.

O'Malley Iseult J.

Finlay Geoghegan J.

[Appeal No: 157/2017]

THE SUPREME COURT

Judicial review – Planning permission – Environmental Impact Assessment – Appellants seeking judicial review of two decisions of the respondent – Whether the respondent was obliged to carry out an Environmental Impact Assessment of the masterplan before deciding on the appeal in relation to the data centre application or the planning application in relation to the substation

Facts: The appellants, Ms Fitzpatrick and Mr Daly, appealed to the Supreme Court against the order of the High Court (McDermott J), dated 1 November 2017, which refused their application for judicial review of two decisions of the respondent, An Bord Pleanála, issued on 11 August 2016, to grant planning permission to the second notice party, Apple Distribution International, in respect of the construction of a data centre and associated works and a substation and grid connection near Athenry, Co. Galway. The issues on appeal in the light of the submissions pursued were: (i) whether the Board was obliged to carry out an Environmental Impact Assessment (EIA) of the masterplan before deciding on the appeal in relation to the data centre application or the planning application in relation to the substation; (ii) if not, what consideration the Board was obliged to give to the masterplan when conducting the EIA of the proposed data centre and ancillary works and the substation; (iii) whether the Supreme Court was obliged to refer any questions to the Court of Justice of the European Union (CJEU) pursuant to Article 267 of the Treaty on the Functioning of the European Union prior to deciding either of the above issues; (iv) if the Supreme Court was in a position to decide either or both of issues (i) and (ii) above, whether the Board complied with its obligations in accordance with the decisions reached.

Held by Finlay Geoghegan J that the Board was not obliged to carry out an EIA of the masterplan before deciding on the appeal in relation to the data centre application or the planning application in relation to the substation; the obligation pursuant to the EIA Directive, as implemented by Part X of the Planning and Development Act 2000 and the Regulations made thereunder, is to carry out an environmental impact assessment of the proposed development, or in this case developments, for which planning permissions were sought. Finlay Geoghegan J held that the Board, in carrying out the environmental impact assessments of the proposed developments which were the subject of the planning applications and phase one of the masterplan, was, however, obliged to take account, as far as practically possible, of potential later phases of the masterplan. Finlay Geoghegan J held that the Board, through the reports of the Inspector, appointed by the Board for the purposes of reporting in respect of each application, which it expressly adopted, complied with the above obligation. Finlay Geoghegan J held that she did not consider it necessary to make a reference to the CJEU to enable the Supreme Court to decide this appeal, nor that there was an obligation to do so.

Finlay Geoghegan J held that the appeal should be dismissed.

Appeal dismissed.

Judgment of Ms. Justice Finlay Geoghegan delivered on the 11th day of April, 2019.

1 This appeal primarily concerns the proper approach in law to the conduct of an Environmental Impact Assessment (‘EIA’) by a planning authority where the development for which permission is sought forms part of a larger plan or masterplan.

2 This appeal is against the order of the High Court (McDermott J.), dated 1 November 2017, which refused the application for judicial review of two decisions of the respondent, An Bord Pleanála (‘the Board’), issued on 11 August 2016, to grant planning permission to the second named notice party, Apple Distribution International (‘Apple’), in respect of the construction of a data centre and associated works and a substation and grid connection near Athenry, Co. Galway. The reasons for the High Court dismissal are set out in a written judgment delivered on 12 October 2017: [2017] IEHC 595.

Factual and Procedural Background

3 The facts are fully set out in the judgment of the High Court and it is only necessary for the purposes of this appeal to summarise same.

4 The proposed developments in respect of which planning permission has been granted comprise the construction of a single data hall and ancillary infrastructure (‘the data centre’) and a 220kV substation and accompanying grid connection (‘the substation’). The site upon which both developments were situated comprised approximately 202 hectares in woodland owned by Coillte, who consented to the application. Apple submitted a masterplan (‘the masterplan’) which made clear that it was envisaged that eight data halls would potentially be constructed on the site in the future.

5 In April 2015, Apple lodged an application for planning permission with Galway County Council in respect of the proposed data centre. This permission was granted by the County Council on 9 September 2015, and this was subsequently appealed to the Board. The second application for permission in respect of the substation, which was designed to serve eight data halls with the requisite electricity supply and grid connection, was submitted to the Board directly in February 2016, in accordance with the provisions of s. 182A(1) of the Planning and Development Act 2000 (‘the 2000 Act’), as amended, and of the Strategic Infrastructure Act 2006.

6 The Board, in the data centre appeal, sought further information from Apple pursuant to s. 132 of the 2000 Act. The information sought is recorded in full at para. 9 of the High Court judgment. The information sought included further information regarding renewable energy projects in the context of an expressed aspiration by Apple that the development would be powered by 100% renewable energy. In addition, a revised environmental impact statement was requested. Certain directions were given in relation to the revised environmental impact statement including ‘in order that a comprehensive assessment of the overall impacts of the proposed development arising can be undertaken, the revised EIS shall clearly set out the predicted impacts arising from the development as proposed in the current application (phase 1) and those predicted to arise with future phases of development’.

7 The revised EIS was submitted by Apple on 12 February 2016 (‘REIS’). Public notification was given of this and further submissions accepted. The Board appointed an inspector (‘the Inspector’) for the purposes of reporting in respect of each application. A joint oral hearing was held between 24 and 27 May 2016. The Inspector prepared separate reports in relation to the data centre appeal and the substation application, both dated 28 July 2016. The Inspector recommended that the Board grant permission for each for reasons and considerations set out in the reports and subject to specified conditions.

8 Following the reports of the Inspector, the Board reached decisions on the data centre appeal and the substation application at a meeting held on 5 August 2016, and on 10 August 2016, the Board issued directions setting out its reasons and considerations for the decisions to grant the planning permissions and the conditions attached thereto. In its direction on the data centre appeal, the Board set out the matters to which it had regard in coming to its decision including ‘the indicative Masterplan for the site, and the extent of the site available’. Under the heading of Environmental Impact Assessment, it stated:-

‘The Board considered the nature, scale and location of the proposed development, the documentation submitted with the application and further information, including the revised environmental impact statement, the submissions made on file and at the Oral Hearing, the mitigation measures proposed, and the report, assessment and conclusions of the Inspector. It is considered that this information was adequate in identifying and describing the direct and indirect effects of the proposed development, including forestry replanting proposals. The Board completed an environmental impact assessment in relation to the proposed development, by itself and in cumulation with other development in the vicinity, including the adjoining proposal for a 2320 kV substation to service the proposed development and the proposed M17/M18 motorway, and concurred with the Inspector's assessment of the likely significant impacts of the proposed development, and agreed with the conclusions on the acceptability of the mitigation measures proposed and of the residual impacts. The Board concluded that the effects of the proposed development on the environment would be acceptable. In doing so, the Board adopted the report of the Inspector.’

9 In its decision on the substation application, the Board included a similar statement in relation to the environmental impact assessment conducted, making reference to the fact that the EIA had been conducted ‘in relation to the proposed development, by itself and in cumulation with other development in the vicinity, including the adjoining proposal for a data centre that would be served by the proposed development…’. As appears in each decision, the Board expressly adopted the report of the Inspector.

10 The appellants, who had appeared before the Board, were granted leave to apply for judicial review in respect of each decision of the Board....