Fitzpatrick & anor v An Bord Pleanala & Ors  IESC 23
Finlay Geoghegan J delivered judgment on behalf of the Supreme Court (Clarke CJ, Kelly P, O'Donnell J, O'Malley J, Finlay Geoghegan J) on the 11th day of April, 2019. The Supreme Court dismissed an appeal to refuse an application for judicial review of two decisions of the respondent, An Bord Pleanála (‘the Board’), 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 proposed developments for which planning permission had been granted comprised the construction of a single data hall and ancillary infrastructure (‘the data centre’) and a 220kV substation and accompanying grid connection (‘the substation’). Apple had 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.
The appellants placed particular emphasis on the Opinion of Advocate General Gulmann in Bund Naturschutz in Bayern and Ors v Freistaat Bayern (Case C-396/92)  E.C.R. I-037 and the obligation stated by him at paragraph 71 to ‘as far as practically possible’ to take account in the EIA of the masterplan. They submitted that there was no substantive difference between carrying out an EIA of the masterplan ‘as far as practically possible’ and carrying out an EIA of phase one and when doing so, ‘as far as practically possible’ taking account of the masterplan.
Finlay Geoghegan J considered that Advocate General Gulmann was clear in his opinion, with which she agreed, about the limits of the obligation imposed by the EIA Directive on competent authorities in Member States and held:
‘In circumstances such as the present, where the application for planning permission relates to a development which is the first phase of a masterplan which potentially includes several more phases, the Advocate General is clear and his opinion is one with which I respectfully agree … The EIA Directive requires an EIA to be carried out of the project or proposed development for which the planning permission is sought. In the light of what [A.G. Gulmann] states at paras. 67-69 [of his Opinion], it is clear that he considers taking into account the masterplan when carrying out the EIA of phase one to be different to carrying out an EIA of the masterplan.’ (underlining added for emphasis)
Thus, Finlay Geoghegan J disagreed with appellants’ interpretation of Advocate General Gulmann’s Opinion and concluded at paragraph 75:
‘For the reasons set out in this judgment, I have reached the following conclusions on the issues in the appeal:
- 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, as amended, 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.
- The Board, in carrying out the environmental impact assessments of the proposed developments which were the subject of the current 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.
- The Board, through the reports of the Inspector which it expressly adopted, complied with the above obligation.’ (underlining added for emphasis)
Project Splitting and Standalone Projects
The appellants also contended that there was what they termed “salami slicing”, submitting that the data centre development for which planning permission was sought was not a standalone project and hence, was not a ‘project’ for the purposes of the EIA Directive. They submitted that the masterplan should be considered to be the ‘project’ for the purposes of the EIA Directive and hence, the planning permissions were granted in breach of the EIA Directive, as no EIA on the ‘project’ was carried out.
Finlay Geoghegan J set out that ‘[t]he trial judge in this case decided that there was no functional interdependence between the development of the first data centre for which permission was sought and the future potential the build out of further data halls in accordance with the masterplan’. She held that:
‘I agree with his assessment and determination. The development of the first data centre is not either functionally, as in the case of O Grianna, or legally, as in the case of Brown, dependent upon the build out of further data centres, as envisaged in the masterplan. Once built, it could be operated as a single data hall. Hence, in that sense it was a project which was a standalone project and capable of being the subject of a planning application for which an EIA could properly be carried out.’
Finlay Geoghegan J thus held, at paragraph 47:
‘… the Board was correct in considering the development of the first data centre and ancillary works to be a standalone development which could properly be the subject of a planning application and EIA assessment … The first data centre is stand-alone in the sense of not being functionally dependent on future phases of the masterplan. The fact that it was the first phase of the masterplan was a matter to be taken into account as part of the relevant circumstances which are to be considered both when conducting the EIA and making the planning decision.’
She did, in contrast, point out that, as the first data centre development was functionally interdependent with the substation and grid connection, ‘[t]he EIA of the data centre application did require to assess its cumulative impacts with, inter alia, the proposed development of the substation and grid connection, as was carried out.’
Scope/Validity of EIA of Phase One of a Masterplan
The appellants also contended that ‘even if the Board’s obligation whilst conducting an EIA of the specific developments which were the subject of the planning applications is to take account, as far as practically possible, of the plans to build out seven more data centres in accordance with the overall masterplan, it failed to do this.’
Finlay Geoghegan J considered, the manner in which ‘account must... be taken, when carrying out the EIA of the proposed development, of the future potential phases of the masterplan, as far as practically possible” and held “the precise manner in which that is required to be done will depend upon the individual facts and circumstances of the specific project and the overall masterplan’. As regards the specific project the subject the appeal, Finlay Geoghegan J held:
‘Hence, where, as here, the specific project is the first phase of an overall masterplan the future phases of which would have significant effects on the environment, it is relevant for a planning authority to be aware, as far as practically possible, of the probable or likely effects on the environment of later phases of the project when making a decision on phase one … The relevancy of and weight to be given to any such potential environmental impacts of future phases of a masterplan in making a planning decision on phase one will be fact specific.’
However, Finlay Geoghegan J recalled that obligation ‘does not amount to an obligation to conduct an EIA of the masterplan’.
Note: This is intended to be a clear and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.