High Court refuses permission to appeal Apple decision

Updated / Wednesday, 1 Nov 2017 23:10

The proposed €850 million Apple data centre in Athenry

The High Court has refused permission to two objectors to Apple's €850 million data centre in Athenry Co Galway, who were seeking to appeal its decision to allow the project to proceed.

Mr Justice McDermott told lawyers for Athenry locals Allan Daly and Sinead Fitzpatrick that they could not appeal to the Court of Appeal.

He said he was not satisfied that their argument constituted a point of law of exceptional public importance, or that it should be the subject of an appeal in the public interest.

His arguments supporting his decision are set out in a written judgement given to the parties in the case.

Three weeks ago, the court rejected their application seeking to overturn the permission granted by An Bord Pleanála for the 500-acre development.

They then applied to the High Court for a certificate allowing them to appeal the decision to the Court of Appeal.

Their argument revolved on whether when dealing with an application for a stand-alone project that forms part of a bigger master plan, it is lawful under Environmental Impact Assessment rules to assess the master plan when it comes to the issue of site locations but only the stand-alone project when it comes to other issues.

Apple's planning application only related to a single data hall, but it is part of a wider master plan, which could lead to up to eight such halls being built.

In order to grant permission to appeal a High Court decision, a judge must be satisfied the issue must be of exceptional public importance and must be in the public interest that it be pursued.

The legal team for Mr Daly and Ms Fitzpatrick can still apply to the Supreme Court for permission to appeal the decision to the higher court.

However, that court will only consider an appeal if the case involves a point of law of general public importance or one necessary in the interests of justice to determine.

Last week the court was told that Brian McDonagh, a Dublin-based businessman involved in data centre development, was not going to try to appeal his action to either of the higher courts.

A spokesperson for Apple said the company had nothing to say about today's High Court ruling or about whether it intends to proceed with the Athenry project.

Taoiseach to meet chief executive of Apple

Taoiseach Leo Varadkar is due to meet Apple chief executive, Tim Cook, in California tomorrow and sources say the issue is likely to be discussed.

Speaking to RTÉ News in Seattle, Mr Varadkar said he would talk to Apple about how their operations in Ireland might be consolidated and expanded into the future.

"Of course part of that meeting will involve a discussion on the proposed data centre in Athenry. It is a project that the Government is 100% behind," he said.

He said it is potentially the biggest investment in the west of Ireland, and that he will be "keen to speak to Apple about their commitment in that project."

The Taoiseach said: "Certainly when I met them last, they told me that planned to go ahead subject to legal challenges, it does appear now that those legal challenges are resolved although there is still a possibility of a legal challenge to the Supreme Court."

He said it would be discussed, it is on the agenda, and the Government is very keen to see that go ahead.

Meanwhile, Mr Daly said he had no comment to make about the ruling or whether they intend to appeal the decision to the Supreme Court.

In his ruling today Mr Justice McDermott said he was satisfied that many of the arguments addressed in the applicants' submissions were trying to reargue aspects of the case which were the subject of argument before An Bord Pleanala's Inspector and later before his court.

"It seems to me that much of this argument is based on the fact that the applicants disagree with the Inspector's conclusions and disagree with the court's application of the legal principles which govern the issues in this case as they are applied to the facts of this case," he said.

"In essence none of the five points advanced transcend the facts of this particular case."

A spokesperson for the Athenry for Apple group, Paul Keane, said supporters of the project were very happy with the ruling.

He said the objector's points of concern have been heard and while there is a lingering concern they may try to appeal to the Supreme Court, the hope now is that common sense will prevail and that the data centre is allowed to go ahead so those involved can all get on with our lives.

He said he understood why Apple has remained silent up to now and added that he thinks it will speak when ready.

He said the Government now needs to work with communities to make planning laws more efficient and fit for purpose in today's environment.

Independent TD for Galway East, Sean Canney, agreed.

He said the Government is finalising the National Development Plan and as part of that the whole planning process will have to be reviewed.

 Mr Canney said timelines need now to be put in place and developments categorised as strategic so we can move on with projects within a certain timeframe.