May 17, 2022

An application for permission to bring two new legal challenges to moves by Apple to keep alive its plan for its €850 million data centre in Athenry, Co Galway, will be heard next month.

Apple previously announced, while a Supreme Court appeal over it was pending, that it was not proceeding with the project.

However, in its new extension application, Apple said construction would commence as soon as practicable after an appropriate developer was found, with work expected to be complete by November, 2026.

Site

The latest challenge centres on a decision last August by Galway County Council to grant Apple Distribution International Ltd a five-year extension to its previous 2016 planning permission for the data centre on the 202-hectare site, which was due to expire in September.

A previous legal challenge to the 2016 planning permission was unsuccessful after the Supreme Court dismissed in 2019 an appeal by two local residents over An Bord Pleanála’s approval for the first phase of the data centre.

One of the original objectors, environmental engineer Allan Daly from Athenry, said he was greatly concerned to learn that the extension permission had been applied for.

A non-governmental environmental organisation, Eco Advocacy CLG of Enfield, Co Meath, which is also seeking to challenge the extension, said there was no requirement for the extension application to be advertised. This, it claimed, was a breach of its right and of the public at large to participate in the planning process.

Both objectors wrote to the council seeking to make a submission to the extension application considerations. They were told there was no provision in legislation for making submissions in such applications.

The objectors complained that the development requires an assessment for environmental impact purposes and for the EU Habitats Directive.

They said Ireland and the Attorney General, who are also respondents in their latest action, have failed in their obligations to properly implement EU law in relation to those (environmental assessment and habitats) matters. They said the county council failed to remediate this breach of EU law by refusing to grant the extension.

It is claimed that it is clear the national position regarding energy availability has radically altered since the 2016 decision was made and where carbon emissions targets had radically altered since then.

The Apple centre, if built, would be one of the largest users of electricity in the State, they say.

Mr Daly, in an affidavit, said the council failed to give any or adequate reasons for its decision to grant the extension and this was in breach of natural and constitutional justice and of national and EU law.

Decisions

Kieran Cummins, executive director of Eco Advocacy, said in an affidavit the exclusion of the public from extension application decisions has already been the subject of an upheld complaint to the Aarhus Convention Compliance Committee.

The decision of the council in granting the extension and the legislation under which it was made was contrary to European and international law, he said.

On Wednesday, following a one-side-only represented application by Oisin Collins SC, for Mr Daly and Eco Advocacy, Mr Justice Charles Meenan directed the application for leave to bring the proceedings should be on notice to the defendants and to Apple, which is a notice party.

He adjourned it to next month but noted that the case should go to the High Court’s fast track commercial list, as the previous challenge did.

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