Supreme Court dismisses appeal holding Board must assess masterplan phases but not conduct separate EIA for masterplan itself.

THE SUPREME COURT

[Appeal No: 157/2017]

Clarke C.J.

Kelly P.

O’Donnell J.

O’Malley J.

Finlay Geoghegan J.

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

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. The appellant sought orders of certiorari of those decisions and declarations that the decisions of the Board were in

breach of Directive 2011/92/EU (as amended) of the European Parliament and of the Council of 13 December 2011 on the assessment

of the effects of certain public and private projects on the environment (“the EIA Directive”) and related jurisprudence.

11. In the High Court, the primary contention of the appellants was that the Board was obliged to carry out an EIA of the masterplan

and that it had failed to do so, in breach of the EIA Directive. They submitted that the masterplan was the “project” for the purposes

of the EIA Directive, rather than the single data centre which was the subject of the planning application. These contentions were

rejected by the High Court judge. There were additional grounds relied upon, also rejected, which are no longer relevant to the

appeal.

12. The High Court (McDermott J.) also refused to grant a certificate for leave to appeal that decision to the Court of Appeal

pursuant to s. 50A(7) of the 2000 Act, as amended, for the reasons set out in the written judgment delivered on 1 November 2017:

[2017] IEHC 644.

13. By a determination given on 26 April 2018: [2018] IESCDET 61, this Court granted leave to the appellants to appeal from the

decision of the High Court. The determination stated that at case management stage, there would be further preliminary matters to

be addressed regarding both the proper scope of the appeal which might be pursued and the appropriateness at that point of a

reference to the CJEU pursuant to Article 267 of the Treaty on the Functioning of the EU (“TFEU”).

14. Subsequent to the grant of leave, Apple announced that it no longer intended to proceed with the development and informed the

Court that in those circumstances, it no longer wished to participate in the proceedings. However, the question of the validity of the

permissions granted which would inure for the benefit of the owner of the lands (Coillte) or any prospective purchaser remained an

issue requiring determination in the appeal.

15. Subsequent to the grant of leave to appeal, the Attorney General and the Minister for Housing, Planning and Local Government

(“the State”) applied to be heard on the appeal as amici curiae and were granted leave by order of the Court on 31 May 2018.

16. A preliminary hearing was held by the Court in October 2018 for consideration of two questions:-

(i) The scope of the appeal which could legitimately be pursued by the appellants in the light of the grounds which were

pursued in the High Court, and

(ii) Whether it was then appropriate to refer a question or questions to the CJEU.

17. Clarke C.J. (O’Donnell, MacMenamin, Dunne and Finlay Geoghegan JJ. concurring) in a written judgment delivered on 5 December

2018 (Fitzpatrick v. An Bord Pleanála & ors. [2018] IESC 60) concluded:

“6.2 For the reasons analysed earlier in this judgment, I am of the view that the applicants should be permitted to argue

both for the position adopted in the High Court, and repeated on the hearing which leads to this judgment, that there is

an obligation to carry out a full EIA on the entire masterplan subject only to the limits of practicality and also to argue

for any lesser obligation as a fall-back position. It would obviously follow that the Court would be entitled to consider, in

the light of the conclusion actually reached in relation to the precise obligation of the Board, whether the assessment

actually conducted in this case fell short of the obligation thus identified.

…

6.4 In addition, and again for the reasons analysed earlier in this judgment, I am not satisfied that it would be

appropriate, at this stage, to refer any issues of European law to the CJEU. That position is without prejudice to the

possibility that it may, after a full hearing, become clear that there remain issues of European law which are both

necessary to resolve so as to properly determine this appeal but which also are not acte clair. I would suggest that the

Court, therefore, should reserve the question of whether there should be a reference until after a full hearing of all of

the issues which arise on the appeal.”

Judgment of the High Court

18. The High Court judgment contains a detailed and considered analysis both of the law and the relevant facts. The submissions

made on behalf of the appellants and the Board are very similar to those made to this Court on appeal. The submissions made by the

State on appeal are similar to those made by the Board in relation to the legal obligations imposed on the Board by the 2000 Act, as

amended, when construed in accordance with the EIA Directive and the relevant case law. The High Court judge concluded, by

reference to the relevant statutory provisions and the opinion of Advocate General Gulmann in Bund Naturschutz in Bayern and Ors.

v. Freistaat Bayern (Case C-396/92) [1994] E.C.R. I-03717, that the obligation of the Board was to conduct an EIA of the project or

development which was the subject of the planning application i.e. the single data centre and ancillary works. The High Court judge

also relied upon a similar conclusion which I had reached in a judgment delivered in the High Court in Friends of the Curragh

Environment Limited v. An Bord Pleanála [2006] IEHC 390, in the course of which I do not appear to have been referred to or

considered the opinion of Advocate General Gulmann.

19. In addition to considering the legal obligation imposed by the statutory framework, the High Court judge considered the submission

that on the facts, phase one, or the application for the single data centre, was not a standalone project but was an integral part of

the masterplan, such that an EIA of the masterplan required to be carried out at that stage. The Court had regard to a number of

decisions where there existed a functional or other interdependence between the project for which the planning application was made

and the overall masterplan. The High Court concluded on the facts of this case that there was not a functional interdependence

between the proposed development in phase one and the masterplan and distinguished this case on the facts from, inter alia, the

situation considered by Peart J. in O Grianna v. An Bord Pleanála [2014] IEHC 632.

20. The High Court also considered the obligation of the Board to assess the cumulative impacts on the environment which were likely

to arise from the completion of the two projects for which application was made, i.e. the data centre and substation in combination,

and an “assessment insofar as it was practical at that time of the future proposed development set out in the masterplan”. The High

Court was satisfied from a consideration of the report of the Inspector that an appropriate EIA was carried out, including the

assessment of such cumulative impacts.

Issues on Appeal

21. The issues on appeal in the light of the submissions pursued are:-

(i) Whether the Board was 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;

(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 this Court is obliged to refer any questions to the CJEU pursuant to Article 267 TFEU prior to deciding either

of the above issues;

(iv) If this Court is 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.

EIA Obligation

22. The primary and core contention of the appellants is, as it was in the High Court, that the masterplan is the “project” for the

purposes of the EIA Directive and, as such, must be the subject of an EIA in the context of an application for planning permission for

phase one, namely the single data centre and the substation and grid connection of a size appropriate to supply potentially eight data

centres. This submission has a legal and factual dimension. It must first be considered in the context of the legal obligations imposed

on the Board by the 2000 Act, as amended, and the Regulations made thereunder, when construed in accordance with, and for the

purpose of giving effect to, the EIA Directive. It also requires a consideration of the facts of these applications, for reasons which will

become apparent following a consideration of the substantive law and certain of the cases.

23. The relevant obligations are imposed on the Board primarily by Part X of the 2000 Act, as amended. Section 172(1) of the 2000

Act, as amended, provides, insofar as relevant:-

“An environmental impact assessment shall be carried out by the planning authority or the board, as the case may be,

in respect of an application for consent for proposed development…”

24. Section 171A (as inserted by s. 53 of the Planning and Development (Amendment) Act 2010, and as substituted by reg. 2(b) of

European Union (Environmental Impact Assessment) (Planning and Development Act, 2000) Regulations 2012 (S.I. No. 419 of 2012))

defines an environmental impact assessment. It provides:-

“‘environmental impact assessment’ means an assessment, which includes an examination, analysis and evaluation,

carried out by a planning authority or the Board, as the case may be, in accordance with this Part and regulations made

thereunder, that shall identify, describe and assess in an appropriate manner, in light of each individual case and in

accordance with Articles 4 to 11 of the Environmental Impact Assessment Directive, the direct and indirect effects of a

proposed development on the following:

(a) human beings, flora and fauna,

(b) soil, water, air, climate and the landscape,

(c) material assets and the cultural heritage, and

(d) the interaction between the factors mentioned in paragraphs (a), (b) and (c).

(2) Subject to this Part, a word or expression that is used in the Part and that is also used in the Environmental Impact

Assessment Directive has, unless the context otherwise requires, the same meaning in this Part as it has in the

Environmental Impact Assessment Directive.”

25. These give effect to Article 2 and 3 of the EIA Directive. Article 3 is repeated almost verbatim by s. 171A of the 2000 Act, as

amended. Article 2, insofar as relevant, provides:-

“2.1. Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have

significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a

requirement for development consent and an assessment with regard to their effects. Those projects are defined in

Article 4.

2.2. The environmental impact assessment may be integrated into the existing procedures for consent to projects in the

Member States, or, failing this, into other procedures or into procedures to be established to comply with the aims of

this Directive”.

26. “Project” is defined for the purposes of the EIA Directive in Article 1(2)(a):

“‘project’ means:

“- the execution of construction works or of other installations or schemes,

- other interventions in the natural surroundings and landscape including those involving the extraction of mineral

resources”

27. The term “project” is not used in the Irish legislation, being replaced in substance by “proposed development”. This is defined in s.

172(1A), for the purposes of s. 172(1), as a “proposal to carry out” one of a series of “developments”. “Development” is defined

generally in s. 3 of the 2000 Act. Correctly, no reliance was placed on any difference between “project” as defined in the EIA

Directive and “proposed development” as defined in the 2000 Act, as amended.

28. Both parties relied upon the analysis by Advocate General Gulmann in Bund Naturschutz in Bayern and Ors. v. Freistaat Bayern

(Case-396/92) of the obligations imposed on a competent authority in relation to the carrying out of an EIA on an early phase of a

road link in Germany which formed part of an overall plan for the construction of a federal highway. The relevant question was

whether the EIA Directive required an environmental impact assessment of that part of the road link for which development consent

had been sought or for the road link as a whole. The preliminary reference from Germany included earlier questions in relation to

transitional provisions. The answers recommended by the Advocate General in relation to those earlier questions indicated that, if

followed by the Court, it would not be necessary to give a reply to this further question. Whilst the Advocate General noted this and

recommended that the Court not give a reply, he nevertheless indicated at para. 63 of the judgment that the believed it to be “the

place to make some comments on the problem it raises”. Thereafter, he stated at paras. 64 – 73:

“64. The plaintiffs in the main action who have submitted observations, first and foremost Bund Naturschutz in Bayern

eV, have argued that the environmental impact assessment must be carried out for the entire road link planned. That is

necessary in order that the directive' s goal of prevention can be fully achieved. The most important decision from an

environmental point of view in connection with the construction of roads is the route it will take. The planning for long

road links such as the one in point takes place in stages - assessment of need, regional planning, route - whereby the

decision concerning the overall linear route, although not binding for the final decision on the route for specific project

sections, will nevertheless invariably limit the options of the project developer. To limit the obligation to carry out an

environmental impact assessment to specifically planned sections carries the risk of a significant restriction of the

environmental impact assessment' s practical importance. Projects which have already been executed in respect of

parts of longer road links - which perhaps in isolation appear not to have given rise to significant environmental problems

- may mean that later, in connection with planning approval for other sections, on practical grounds sufficient account

will not be taken of serious environmental problems revealed by the environmental impact assessments undertaken for

those sections. If, for example, sections A and C which have already been constructed are to be linked up by section B,

the planning approval for the construction of sections A and C will mean that the feasibility of the planning authority' s

selecting an alternative route for section B is severely restricted.

65. The view put forward by the plaintiffs in the main proceedings has much to recommend it.

66. The optimal solution is presumably for an environmental impact assessment to be carried out both in connection

with decisions on the routing of the entire length of road and on decisions for the specific construction projects for

sections. That is also the solution chosen by the Bundestag when it transposed the EIA Directive, in connection with

which, as mentioned, when amending the Law on Trunk-Roads it imposed an obligation to carry out an environmental

impact assessment in both respects.

67. That is, however, not a solution that the Member States are bound to choose under the EIA Directive. As stated by

Freistaat Bayern and the three governments which have submitted observations, it is not possible to interpret the

directive to the effect that it makes an environmental impact assessment mandatory for anything other than the

specific projects submitted by developers to the competent authorities in order to obtain authorization to carry out

construction or other works - even if the actual application relates to only one part of a longer road link which, as

normally happens in practice, is to be constructed in stages.

68. The principle underlying the directive is unambiguous: an environmental impact assessment is to be carried out for

projects in respect of which the public or private developer is seeking development consent (see on this point Article

1(2), Article 2(1) and (2), Articles 5, 6 and 8 in particular, which all assume that applications have been submitted for

consent to a project).

69. That result is confirmed by the difficulties which could arise in laying down what comprises an "entire project" when

that concept is not the same as "a specific project in respect of which an application has been submitted". In addition,

there might be difficulties in carrying out an environmental impact assessment as provided for in the directive for

projects which have not yet been worked out in detail. It must be self-evident that the directive cannot indirectly have

the effect of forcing the Member States to depart from the normal practice according to which long road links are

executed by constructing sections over staggered periods.

70. It is, however, undoubtedly correct that, as the United Kingdom points out, the purpose of the directive should not

be lost by the projects which should be subject to an environmental impact assessment being given a form which

renders an environmental impact assessment meaningless. The Member States must ensure that the obligation to carry

out an environmental impact assessment is not circumvented by a definition that is over-strict or otherwise

inappropriate, in the light of the purpose of the directive, of the projects in respect of which application must be made.

71. The important question in the present connection is not, however, which projects are to be subject to an

environmental impact assessment. It is whether, in connection with the environmental impact assessment of the

specific project, there is an obligation to take account of the fact that the project forms part of a larger project, which

is to be carried out subsequently, and in the affirmative, the extent to which account is to be taken of that fact. The

subject-matter and content of the environmental impact assessment must be established in the light of the purpose of

the directive, which is, at the earliest possible stage in all the technical planning and decision-making processes, to

obtain an overview of the effects of the projects on the environment and to have projects designed in such a way that

they have the least possible effect on the environment, That purpose entails that as far as practically possible account

should also be taken in the environmental impact assessment of any current plans to extend the specific project in

hand.

72. For instance, the environmental impact assessment of a project concerning the construction of the first part of a

power station should, accordingly, involve the plans to extend the station' s capacity fourfold, when the question of

whether the power station' s site is appropriate is being assessed.

Similarly, when sections of a planned road link are being constructed, account must be taken, in connection with the

environmental impact assessment of the specific projects of the significance of those sections in the linear route to be

taken by the rest of the planned road link.

73. There is neither reason nor basis for a more specific determination of the scope of that obligation in the present

case.”

29. The CJEU, in its judgment in Bund Naturschutz, did not consider it necessary to consider the question on which the Advocate

General made the above observations. Nor did it make any comment on the views expressed by the Advocate General. In considering

the reliance placed by the parties on the above, it is necessary to consider them as they are, an Opinion expressed by a very

distinguished Advocate General, but neither confirmed nor disagreed with by the CJEU and also to consider that they were made in

the factual context of the construction of a link road which is carried out in stages.

30. The appellants place particular emphasis on para. 71 and the stated obligation “as far as practically possible” to take account in

the EIA of the masterplan. They submit that there is 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.

31. The Board and State parties submit there is a difference and rely upon the earlier statements in paras. 67-69 as to what the EIA

Directive requires, in accordance with its “unambiguous” underlying principle. The obligation to carry out the EIA, they submit, in

accordance with the EIA Directive, as implemented in Ireland, is confined to the specific project or proposed development the subject

of an application for planning permission, and taking into account the masterplan in doing so does not necessarily entail the

prescriptive elements of the EIA Directive.

32. I consider that the Advocate General is clear in his opinion about the limits of the obligation imposed by the EIA Directive on

competent authorities in Member States. He correctly, in my view, distinguishes between what might be considered environmentally

desirable and the option chosen by the EIA Directive. 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 position is, as he refers to the underlying

principle at para. 68 of his judgment, “unambiguous”. 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 he states at paras. 67-69, 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.

33. Accordingly, my conclusion is that the project which must be the subject of an EIA in accordance with the EIA Directive and the

2000 Act, as amended, is the proposed development which is the subject matter of the planning application, and not the larger

masterplan of which it is the first phase. On the facts of this case, the trial judge was correct in concluding that the obligation placed

on the Board by Part X of the 2000 Act, as amended, was to carry out an EIA of the proposed developments which were the subject

matter of the applications for planning permission, namely the data centre and ancillary works and the substation. That follows from

the express wording of ss. 171A and 172(1) of the 2000 Act, as amended, implementing in this jurisdiction the relevant provisions of

the EIA Directive referred to by Advocate General Gulmann.

34. Finally, on this issue I have considered, in accordance with this Court’s obligation under Article 267 TFEU and the judgment of the

CJEU in CILFIT v. Ministero della Sanità (Case 283/81) [1982] E.C.R. 3415, whether a reference should be made to the CJEU before

reaching the above decision. The question as to what constitutes the “project” for the purposes of the EIA Directive may be

considered to be one of interpretation of the EIA Directive. However, the interpretation given in the opinion of Advocate General

Gulmann follows directly from the underlying principle which he stated to be “unambiguous”. That interpretation with which I have

agreed is one which, in my view, is “so obvious as to leave no scope for any reasonable doubt”, as that phrase is used in the

judgment of the CJEU in CILFIT, at para. 16. I am also satisfied that this interpretation is equally obvious to the courts of the other

Member States.

35. It is for this Court to determine whether the correct application of EU law is so obvious as to leave no scope for reasonable doubt

and if it so determines, to refrain from referring a question. The CJEU in Ferreira da Silva e Brito e.a. v Estado Português (Case C-

160/14), ECLI:EU:C:2015:565 at para. 40 puts it thus:

“40. It is true that the national court or tribunal has sole responsibility for determining whether the correct application

of EU law is so obvious as to leave no scope for any reasonable doubt and for deciding, as a result, to refrain from

referring to the Court a question concerning the interpretation of EU law which has been raised before it (see judgment

in Intermodal Transports, C 495/03, EU:C:2005:552, paragraph 37 and the case-law cited).”

36. It is also relevant that the interpretation given by the Advocate General in his opinion in Bund Naturschutz is now approximately

25 years old. In the intervening period, in many Member States, there have undoubtedly been EIAs conducted of many projects which

form one part of a larger masterplan. Even in relation to link roads, this is obvious having regard to road development in Europe. It

does not appear that in the intervening period there has been any reference to the CJEU by a national court which required a

consideration or reconsideration of the interpretation given by Advocate General Gulmann on this issue. Further, the Court’s attention

has not been drawn to any judgment of a national court which took a different view to that expressed by the Advocate General.

Project Splitting and Standalone Projects

37. Next, the appellants rely by analogy on the well-established line of authority which seeks to prevent avoidance of assessment

pursuant to the EIA Directive by the splitting of projects which, if taken together, are likely to have significant effects on the

environment and meet the thresholds for assessments in accordance with Article 4 of the EIA Directive and Annexes referred to

therein, see, inter alia, Ecologistas en Acción-CODA v. Ayuntamiento de Madrid (Case C-142/07) [2008] E.C.R. I-06097at para. 44:-

“44. Lastly, as the Court has already noted with regard to Directive 85/337, the purpose of the amended directive

cannot be circumvented by the splitting of projects and the failure to take account of the cumulative effect of several

projects must not mean in practice that they all escape the obligation to carry out an assessment when, taken

together, they are likely to have significant effects on the environment within the meaning of Article 2(1) of the

amended directive (see, as regards Directive 85/337, Case C-392/96 Commission v Ireland [1999] ECR I 5901, paragraph

76, and Abraham and Others, paragraph 27).”

38. The appellants accept that this appeal does not concern project splitting in the above sense, the purpose of which is to avoid an

EIA. Both of the current proposed developments were subject to an EIA. Any future development of additional data centres as

envisaged in the masterplan will also be subject to an EIA when planning permission is sought. There was no attempt by Apple to

avoid assessment of the environmental impacts of the developments for which consent was sought or any future development. The

issue is the time at which the EIA of such potential future developments requires to be carried out.

39. The appellants seek to rely upon the principles behind the above line of authority to contend that on the facts herein, there was

what they termed “salami slicing”, and submit 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 submit that on the facts, 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 and thus, they must be quashed. In support of this

submission, they rely upon the fact that the Inspector, and hence the Board, considered justification of the site selection by

reference to the masterplan.

40. The appellants also rely, inter alia, upon the decision of Peart J. in the High Court in O Grianna v. An Bord Pleanála and that of the

English Court of Appeal in Brown v. Carlisle City Council [2010] EWCA Civ 525 [2011] Env. L.R. 5, in support of that submission.

41. In each of the above cases, the planning permission granted was effectively held to be unlawful by reason of the fact that the

development for which permission was sought was not a standalone project and the requisite EIA had not been carried out. In O

Grianna, the application had been for the construction of wind turbines and related works. The application did not include any works

in relation to a connection from the wind turbines to the national grid. The developer had submitted that it was not possible to

determine the line of or form of the grid connection at that stage. The contention of the applicants was that whatever form the grid

connection would take, there would be inevitable and significant consequences for the environment.

42. On the facts of that case, Peart J. reached the following conclusion at para. 27 of his judgment:-

“27. I am satisfied that the second phase of the development in the present case, namely the connection to the national

grid, is an integral part of the overall development of which the construction of the turbines is the first part. This is not

a case such as in R (Littlewood) v. Bassetlaw District Council [2008]’s E.W.H. C. 1812 where the development in question

was a stand-alone project within a larger Master Plan development, the full details of which had not yet been finalised. In

that case it was held that phase 1 was not dependent or reliant upon the completion of any other part of the master

plan, and therefore the cumulative effects of the entire master plan did not need to be assessed. The present case is

different. The wind turbine development on its own serves no function if it cannot be connected to the national grid. In

that way, the connection to the national grid is fundamental to the entire project, and in principle at least the

cumulative effect of both must be assessed in order to comply with the Directive.”

43. Later at para. 32, Peart J. referred to his conclusion as being “that in reality the wind farm and its connection in due course to

the national grid is one project”. The legal conclusion reached was that the planning application was premature and did not comply

with the EIA Directive, as it did not include an EIA which addressed the impact on the environment of that total project at the

earliest stage.

44. In Brown, the application for planning permission was for the construction of a freight distribution centre at Carlisle airport. The

planning permission granted was linked to what is known in the English regulatory scheme as a “section 106 agreement” concerning

the upgrade of certain features of the airport, including the principal runway and passenger terminal facilities. The EIS submitted and

the EIA carried out related only to the freight distribution centre and not the proposed works to upgrade the airport. The effect of

the s. 106 agreement was that the developer could not lawfully build and occupy the freight distribution in isolation. It could only be

done if the airport works were carried out. In other words, the airport works were integral to the proposed development of the freight

distribution centre. Whilst the reasoning of Sullivan L.J. in the English Court of Appeal related to the failure of the EIA to consider the

cumulative effects of both the permitted development and the airport works as required by the English implementing regulations, it is

nevertheless indicative of an approach that requires assessment of the cumulative effects of a proposed development which is either

not yet permitted or where an application for permission has not yet been made, where it forms an integral part of the development

for which permission has been applied. Another way of putting it is that an assessment of the cumulative effects of the proposed

development and a future development is required where there is a functional or legal interdependence between the development for

which permission has been applied and the envisaged future development.

45. The approach in each of O Grianna and Brown is dependent upon a finding of fact made that the specific project for which

planning permission was granted was functionally or legally interdependent on a further development not included in the application for

planning permission which might have environmental effects and in respect of which no EIA had been carried out. Brown has been

distinguished in a number of subsequent English cases where no such interdependence existed, including by the Court of Appeal in

Bowen-West v. Secretary of State for Communities and Local Government [2012] EWCA Civ 321, [2012] Env. L.R. 22.

46. The 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.

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.

47. In reaching that conclusion, I do not wish to suggest that the data centre development was functionally independent of the

substation and grid connection. They are functionally interdependent. The environmental impacts of those two applications were

correctly considered together in a cumulative assessment. No objection has been taken in the proceedings to the manner in which

that was done. Therefore, subject to that comment, 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. While the Board took into account the fact that the data centre was the first of eight data centres proposed in the

masterplan when considering the justification for the site selected, it does not follow that impermissible project splitting or slicing has

taken place. 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. The scope of the EIA of the data centre

required by reason of the fact that it is phase one of a masterplan is a separate issue considered below.

48. Accordingly, my conclusion on the primary and core contention of the appellants is that there was no obligation on the Board to

conduct an EIA of the masterplan in the course of an application for planning permission for phase one thereof. As a matter of law,

the obligation pursuant to the EIA Directive, as implemented in this jurisdiction by the 2000 Act, 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 permission was sought. On the facts of this case, I have concluded that, notwithstanding that the data centre

application is the first phase of an overall masterplan, it was permissible to treat it as a standalone project or development both for

planning purposes and for the assessment under the EIA Directive, as it was not functionally or legally dependent on later phases of

the masterplan. The 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. Nevertheless, the fact that they were phase one of the

overall masterplan affects the scope of the EIA of the proposed developments which was required to be carried out.

49. The conclusion that the trial judge’s finding that the proposed developments which were the subject of the planning applications

are not functionally or legally interdependent on the build out of the remainder of the masterplan should be upheld means that it is

unnecessary to consider further the proper approach where such a situation is established on the facts, as in O Grianna and Brown.

The well-established principles that the EIA Directive has “a wide scope and a broad purpose”, as held in Kraaijeveld & Ors. (Case C-

72/95) [1996] E.C.R. I-05403, and that there is an obligation to take account of environmental effects at the earliest possible

opportunity appear to be the basis of the correct approach in those cases. It is unnecessary in the course of this judgment to

consider further the legal consequences of a finding of fact that a proposed development, for which planning permission has been

applied and where an EIA is required, is functionally or legally interdependent on another potential development which may have

effects on the environment and for which planning permission has not yet been applied. It must be recalled that an EIA requires

assessment of both direct and indirect effects and that there is also a requirement to assess the cumulative effects of the project as

it interacts with other developments, in accordance with Schedule 6(2)(c) of the Planning and Development Regulations 2001 (S.I.

No. 600 of 2001). The latter are normally confined to those developments which are existing, permitted or the subject of a current

application. That issue should be left over to a case where it arises on the facts.

Scope of EIA of Phase One of a Masterplan

50. The next issue is the consideration which the Board was obliged to give to the masterplan when conducting the EIAs of the

proposed data centre and the substation. This concerns the scope of the EIAs required to be carried out of the proposed

developments of the single data centre and the substation, in the factual context that they are the first phase of the masterplan. It

arises from the secondary, or fall back, submission of the appellants if they failed, as they have done, in their primary contention that

there was an obligation to conduct an EIA of the full masterplan. The issue must now be considered in the legal context that,

contrary to the submissions of the appellants, an EIA of the masterplan is not obligatory. The EIAs required are of the proposed

developments for which planning has been applied.

51. The only case before the CJEU in which a similar issue was raised appears to be Bund Naturschutz. The scope of the EIA of the

specific project, which on the facts formed part of a larger project, was addressed by Advocate General Gulmann at para. 71:-

“71. The important question in the present connection is not, however, which projects are to be subject to an

environmental impact assessment. It is whether, in connection with the environmental impact assessment of the

specific project, there is an obligation to take account of the fact that the project forms part of a larger project, which

is to be carried out subsequently, and in the affirmative, the extent to which account is to be taken of that fact. The

subject-matter and content of the environmental impact assessment must be established in the light of the purpose of

the directive, which is, at the earliest possible stage in all the technical planning and decision-making processes, to

obtain an overview of the effects of the projects on the environment and to have projects designed in such a way that

they have the least possible effect on the environment. That purpose entails that as far as practically possible account

should also be taken in the environmental impact assessment of any current plans to extend the specific project in

hand.”

52. Once they failed in their primary contention that there was an obligation to carry out an EIA of the masterplan, the appellants did

not dispute that the above approach is in accordance with the EIA Directive but submitted that this Court should make a reference to

the CJEU pursuant to Article 267 TFEU to seek, as they put it, “clarification” as to what is intended by the phrases “as far as is

practically possible” and “account should be taken”.

53. I do not consider that this Court should or is obliged to make a reference pursuant to Article 267 TFEU to seek such a

“clarification” prior to deciding this appeal. Such a reference could only relate to the interpretation of the EIA Directive or other

relevant EU law and not to its application to the facts of the appeal. The opinion of the Advocate General in para. 71 above is not to

be interpreted as the Treaties or an Act of the EU Institutions would be. The opinion at para. 71 gives guidance on the application of

the EIA Directive in accordance with its underlying principles and purposes to a particular set of facts, namely where a specific

project of which an EIA is being conducted forms part of a larger masterplan. There is no dispute between the parties in relation to

the cited purposes or underlying principles of the EIA Directive or the relevant provisions of the EIA Directive.

54. The application of the requirements of the EIA Directive, in accordance with its underlying principles and purposes as determined

by the case law of the CJEU, to the particular facts of a proposed development is a matter for the planning authorities, subject to

supervision by national courts as permitted by national law or required by the EU principles of equivalence and effectiveness.

55. Article 3 of the EIA Directive identifies what must be done in an EIA:-

“The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each

individual case and in accordance with Arts. 4 – 12, the direct and indirect effects of a project on the following

factors…”

56. As appears, the obligation is to carry out an assessment in an appropriate manner in the light of each individual case

(emphasis added). This emphasises that the manner in which each individual assessment is to be carried out is fact specific to the

individual case which must also be in accordance with other relevant requirements of the EIA Directive. It does not appear to me that

any additional assistance is to be obtained by a reference to the CJEU on the interpretation of Article 3 or any other potentially

relevant article, or on the purposes or underlying principles of the EIA Directive. There is no dispute about these. As already

determined, the EIA is to be conducted of the specific project which is the subject of the planning application and there is no

obligation to carry out an EIA of the masterplan. However, to give effect to the purposes of the EIA Directive so that potential

effects on the environment be assessed at the earliest possible stage, account must also be taken, when carrying out the EIA of the

proposed development, of the future potential phases of the masterplan, as far as practically possible. The purpose of this is inter alia

to enable the proposed development and potentially future phases of the masterplan to be designed so as to have least possible

impact on the environment. 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. This is further considered below. It does not appear to me that any

further interpretation of the EIA Directive may be of assistance in identifying the manner in which the Board was obliged to carry out

the EIAs of the two proposed developments, taking into account, as far as practically possible, the potential seven additional data

centres in accordance with the masterplan.

57. Just as the manner in which an EIA must be conducted is fact specific, for the reasons already stated so too is the obligation to

take into account, as far as practically possible, the remainder of the masterplan. How this should be done and what requires to be

considered will depend upon the nature of the development, phase one and the masterplan, and the consequences for future phases

of the masterplan of a planning consent for phase one and its development. For example, in the case of link roads, as were at issue in

Bund Naturschutz, construction of the part of the road which is the specific project for which planning permission is sought inevitably

means that the next phase will commence at the point at which that phase ends. If, as postulated by the Chief Justice during the

hearing of the appeal, such an end point would mean that the next section of road would inevitably have to go through a Special Area

of Conservation, an assessment of the potential environmental impacts of the potential next phase of the masterplan would be a

relevant matter for the Board to take into account in deciding whether to give permission for phase one, which would in practice

determine the starting point for the next phase of the road.

Validity of EIA

58. The appellants contend, as they did in the High Court, 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. The particular focus of their

submission was that there was inadequate consideration given to the potential energy use and impact on climate change if all seven

additional data centres were built out. The masterplan indicates that this would be carried out over a period of fifteen years.

Notwithstanding this submission of inadequacy, the appellant did not identify what further potential environmental impacts should

have been assessed or considered at this stage.

59. It is not contended by the appellants that no regard was had to or no account taken of the overall masterplan when assessing

the environmental impacts of the proposed developments. On the contrary, the appellants submit that certain of the conclusions,

particularly in relation to the acceptability of the 202-hectare site, were reached by reference to the projected build out in

accordance with the masterplan. Similarly, the size of the substation and grid connection was considered justifiable by reference to a

build out in accordance with the masterplan.

60. In considering whether the Board did take account, as far as practically possible, of the proposed build out in accordance with the

masterplan, it is important to recall the purpose and effect of the EIA. For the reasons earlier stated, the Board is required to conduct

an examination, analysis and evaluation, and to identify the direct and indirect effects, of the proposed developments on the matters

specified in s. 171A(1) of the 2000 Act and Article 3 of the EIA Directive. However, as this Court has previously held, the outcome of

that examination, analysis, evaluation and identification informs, rather than determines, the planning decision which should or may be

made: Connelly v. An Bord Pleanála & ors [2018] IESC 31 per Clarke C.J. from para. 8.12, approving my High Court judgment in Kelly v.

An Bord Pleanála [2014] IEHC 400 at para. 33.

61. It follows from this that, on the facts of this appeal, the purpose of the Board taking into account the masterplan when carrying

out the EIA of the proposed developments the subject of the planning applications and, inter alia, assessing potential environmental

impacts of further data centres in accordance with the masterplan, is to inform itself at the earliest possible stage of such potential

impacts so that it takes a decision on the specific planning applications with the fullest environmental knowledge. This is consistent

with the precautionary principle and purpose of the EIA Directive which is that, at the earliest possible stage, an overview of the

effects of projects on the environment is obtained in order that projects may be designed in such a way that they have the least

possible effect on the environment. As a matter of common sense, a decision to grant planning approval for phase one of a larger

project or masterplan may, as was put by Laws LJ in Bowen-West v. Secretary of State for Communities and Local Government, be

“a foot in the door” for planning permission applications for further phases. In this instance, the location and size of the site relevant

to the phase one decisions will not, in reality, be revisited on any applications for further data centres. Also, the construction of the

substation and grid connection suitable for multiple data centres will, on the present facts, give “a foot in the door” for the

construction of further data centres. The electricity supply and connection will be available thereto. It is this factual consequence of

the construction of phase one of the masterplan for potential future applications which requires the EIAs of phase one to be forward-

looking, taking into account, as far as practically possible, future environmental impacts of future potential phases of the masterplan.

Such future potential impacts might also be considered to be potential indirect impacts of phase one.

62. 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 focus of the

obligation to take account is, as the Advocate General observes in para. 71 of his Opinion, the current application for permission, and

it is therefore imposed with a view to a planning authority having an overview of the effects of the overall masterplan on the

environment when making a decision on the current application and ensuring, inter alia, that it is designed to have the least possible

effect on the environment. Further, if for example, the potential impacts on the environment of future phases of a masterplan were

such that, in principle, it appeared that no consent could be given to such developments, then that would be relevant to the decision

on the first phase of the development. 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.

63. It must, however, be recalled that the obligation identified above to take account, when conducting the EIA of the proposed

development which is the subject of the planning application, of potential environmental impacts of future phases of a masterplan, as

far as is practically possible, does not amount to an obligation to conduct an EIA of the masterplan. That follows from the conclusions

earlier reached, which are in accordance with the Opinion of Advocate General Gulmann in Bund Naturschutz. When and if an

application for planning permission for further phases of the masterplan is made, a full EIA will be required which in turn will both

assess cumulative impacts with all existing or approved developments, and look forward by taking account, as far as practically

possible, of remaining future phases of the masterplan.

64. The question as to whether the Board took account, as far as practically possible, of the future build out in accordance with the

masterplan may be determined by reference to the report of the Inspector, as this has been expressly adopted by the Board in its

decision. As already stated, the particular focus of the appellants’ submission was that there was inadequate consideration given to

the potential energy use and impact on climate change if all seven additional data centres were built out.

65. The Inspector considered energy demand, climate change and sustainability in section 12.6 of his report. The Board, in its

submissions, relies upon the consideration given in that section to the energy use and potential climate change issues arising if

development in accordance with the masterplan was to be progressed and all eight data centres were built. At para. 12.6.1, the

Inspector summarised the use of energy by stating:-

“…To summarise the proposed development of the data hall included in the subject application would generate a demand

for 6MW of power by the end of 2018 with that anticipated to rise to 30MW by 2023 when the development is fully

operational. Potentially, in the event that development along the lines of the masterplan for the site was

progressed and permission granted for this additional development, the power demand generated by the site

could extend to 240MW. With regard to the level this energy demand would represent, a significant number of figures

were presented during the course of the hearing with references made to the energy demand relative to generating

capacity, average energy demand and peak energy demand. The calculation is also influenced by whether the energy

use of the development is assessed against current or future energy use/demand and whether it is assessed relative to

the relevant figure for the Republic of Ireland or all Ireland. In terms of peak power demand, the 30MW demand from

one data hall would equate to approximately 0.59 percent increase in all-time peak demand and a 0.84 percent increase

in annual energy use if measured against the 2015 figure which is the most recent available in the Eirgrid 2016-2025

Generation Capacity Statement. The corresponding figures for a full build out of 8 data halls would be a 4.7%

increase in peak all time demand (which was in 2010) and an approximately 6.75 percent increase in terms of

annual energy use based on 2015 figure[s]. This figure of 6.75 percent takes account of a stated 88 percent

capacity factor in the development and without allowance for this figure energy use would be approximately 8 percent

of 2015 annual energy use. It should be noted that these figures relate to current energy use and percentage

energy use would likely be less by the time 30MW demand (c. 2023) or 240MW demand (2030-2035) scenarios

arose if we assume that total energy use will increase over time. Whatever way the figures are calculated and

presented it is clear however that the amount of energy consumed by the proposed development, both as proposed in

the current application and certainly as would arise with the full build out of the masterplan for the site would be very

significant.” [emphasis added]

66. The Inspector next outlines the issue of energy demand in the context of climate change and Irish government targets and then,

at para. 12.6.3, he turns to climate change and states that “in planning policy terms there is no policy at a national level regarding

very high energy consuming projects such as data centres.” Having noted certain other matters concerning the Irish and international

position referred to in the REIS, he then stated:-

“…In the absence of a clear policy on this form of development at a national level it is in my opinion very difficult for a

body such as An Bord Pleanála to make a decision that this form of development is not acceptable in principle. In

addition, while data centres may have the potential to make the achievement of climate change targets more difficult

they have clear potential benefits in terms of employment and spin off economic activity. The location of the proposed

facility is also such that it would have a potentially significant role in the rebalancing of economic development at a

national level. All of these factors have in my opinion to be taken into account in making an overall assessment of the

merits of this proposal.”

67. The Inspector next considered the statement made by Apple that the proposed development would be powered by 100%

renewable energy. For reasons set out, he reached the following conclusion at para. 12.6.7:-

“On balance I would agree with the basis of the argument put forward by the appellants and observers regarding the

claims of 100 percent renewable power supply. In the short term where renewable electricity generation in Ireland is

below the threshold feasible on the network, it may be possible to make a case that a large contract for the supply of

power such as that signed between Vayu and Apple could lead to additional renewable generation and that a significant

percentage of the power supplied can reasonably be stated to be from renewable sources. Assessing the extent to

which such generation would have come on stream in the absence of the development is in my opinion problematic. In

future phases of the development, given the limitations in terms of the grid and the amount of power required I

do not see how it can clearly be shown that power to the Apple data centre would be from 100 percent renewable

sources. In my opinion the best assumption which can be made is that power supply to the development will be from

grid average power generation sources.” [emphasis added]

68. The Inspector then continues to assess the potential climate impacts of the energy requirement for the proposed development

and for a full build out of the data halls on the basis of the grid average sources from 2013, which included a renewable component of

approximately 20%. At para. 12.6.8, he then stated:-

“…On the basis of this assumption, the CO2 emissions for the additional 30MW that would arise on foot of the current

proposal would be approximately 108968 tonnes rising to 869958 tonnes with full build out of the eight data halls as

per the masterplan. The effect of this increase in CO2 in terms of percentage increase over 2014 levels would be c.

0.187% for the current proposal and c. 1.49% in the case of the full masterplan. As noted these figures are on the

basis of the existing (2013) generation mix and assuming a continued increase in renewable electricity

generation towards the 40 percent target the levels of additional CO2 emissions and percentage increase are

likely to be quite significantly less than above.” [emphasis added]

69. He then turned to the probable percentage increases in CO2 emissions of the phase one development and the overall development

of the masterplan and at para. 12.6.9, he stated:-

“…Regarding the potential for the overall development of the masterplan to increase national CO2 emissions by

approximately 1.5 percent I would question the conclusion of the REIS (9.8.7.1) that such an impact would not be

significant. Against this it should be noted that the 1.5% figure is on the basis of a 20 percent penetration of

renewables which will increase significantly by the 2030-2035 anticipated full build out of the masterplan

development. It should also be noted that overall CO2 emissions will likely have increased by 2030-2035[,] such

that the percentage used to power this development will reduce [;] that there is the potential for changing

circumstances whereby Apple-provided renewable generation projects serving the development [,] either

directly or via the grid [,] may come on stream [;] and also that there are likely to be continuing slight increases

in overall efficiency of conventional power generation. For all of these reasons, it is not in my opinion possible to

state with any certainty what the impact of the full build out of the data centre as per the masterplan would be in

terms of CO2 emissions other than to state that the 1.5 percent increase referred to in the REIS is a very much

worst case scenario.” [emphasis added]

70. The Inspector’s overall assessment of these issues was carried out in the context of the planning decision which the Board was

required to take in respect of the application for permission for the first data centre. Having regard to the size of the site required to

accommodate the further build out in accordance with the masterplan and to other relevant planning considerations, such as

employment and regional development, at para. 12.6.10, it was stated:-

“As set out earlier in this assessment, a significant part of the location justification for this proposal relates to the

size of site which is required to accommodate the development of additional phases as per the submitted

masterplan. It is therefore considered that while additional phases will be the subject of future applications for

permission there needs to be some regard given at this stage to the potential environmental impact of such

additional phases of development. Notwithstanding the factors set out above that may result in a reduction in

the 1.5% increase in CO2 predicted in the REIS it is my opinion that the future full build out of the site as

envisaged in the Masterplan would have a potentially material impact in terms of increased overall CO2

emissions and hence implications in terms of climate change and the ability of Ireland to meet its climate change

and greenhouse gas emission targets. As set out at [12.6.2] above, there is limited guidance available

regarding the principle of accommodating this form of very energy intensive development in Ireland. It is

however my opinion that the potential benefits of the proposed development of the facility in terms of direct and

indirect employment and the positive impact on regional development are such that they outweigh the potential adverse

climate change and increased greenhouse gas emission impacts which may arise. In coming to this conclusion I have

regard to the facts set out at [12.6.8 and 12.6.9] above whereby the impacts of the future development in terms

of increase CO2 emissions will likely not be as significant as that set out in the REIS. I also would have regard in

reaching this conclusion to the fact that the nature of the development is one which is required to be provided in

some location and the fact that any additional phases of development would require permission at which time

changing circumstances in terms of direct energy supply, climate change policy and potentially new policy

direction on data centre and other energy intensive forms of development could be taken into account. This

approach of having regard to potential future developments in energy generation and demand is however an issue on

which the Board will need to take a position, particularly given the importance of the scale of overall development and

site size in the choice of location.” [emphasis added]

71. The Inspector later considered the adequacy of the submitted REIS and concluded at para. 12.8.1.3:-

“…The structure of the REIS document is such that, in my opinion it provides a comprehensive assessment under each

of the required environmental factors as specified in the directive. In particular, in my opinion the REIS allows for an

integrated assessment of the overall impact of the data centre and power supply developments as well as detailing the

cumulative impacts of these projects with other relevant plans and projects, including the potential future expansion of

the data centre.”

72. In my view, the Inspector, when carrying out the environmental assessment of the proposed development in his report, did take

account, as far as was practically possible, of the proposed build out of a further seven data halls and in particular, the potential

impact of such builds on energy uses and climate change. The Inspector, in particular in the passages set out above identified the

potential impacts, what he considered to be significant impacts, and also potential changes over time which might be relevant to a

precise assessment of the environmental impact of any application for permission to build one or more additional data centres in the

future. He pointed out that these would have to be assessed in accordance with the then-applicable energy policies and energy

usage and in particular, having regard to the overall position of renewable energy at a future date.

73. The Inspector also considered whether, in relation to the impact of such a project on climate change, it could be said to be a

form of development which is not acceptable in principle. However, he expressed the view that in the absence of a national policy, it

would be difficult for the Board to reach such a decision.

74. My conclusion is that the High Court judge was correct in determining that the Board had conducted a valid EIA, in accordance

with the requirements of the EIA Directive as implemented in Ireland, in the particular factual context that the proposed developments

which were the subject of the planning application formed part of the larger masterplan with a potential further seven data halls. The

EIA did take account, as far as practically possible, of the proposed build out of a further seven data halls and in particular, the

potential impact of such builds on energy uses and climate change.

Conclusions

75. For the reasons set out in this judgment, I have reached the following conclusions on the issues in the appeal:

1. 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.

2. 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. 3. The Board, through the reports of the Inspector

which it expressly adopted, complied with the above obligation.

4. The Court does not consider it necessary nor that it is obliged to make a reference to the Court of Justice of the

European Union to enable it decide this appeal.

Relief

The Appeal should be dismissed.