The Supreme Court has agreed to hear an appeal aimed at overturning An Bord Pleanála’s approval of the first phase of tech giant Apple’s planned €850 million data centre in Athenry, Co Galway.

The court also indicated it may be necessary to make a preliminary reference of issues to the Court of Justice of the EU (CJEU).

In a published determination, the Chief Justice, Mr Justice Frank Clarke, Mr Justice John MacMenamin and Ms Justice Elizabeth Dunne said they had decided to hear an appeal by Sinead Fitzpatrick, who lives close to the planned development, and Allan Daly, of Athenry.

They said one of the matters to be considered is whether a point of law arises concerning the application of broad general principles of EU law in particular cases and, if so, whether the court was obliged to refer issues to the CJEU.

The court was mindful the proceedings have attracted “very considerable” public attention and “no little public controversy”, but its “limited role” was to decide whether the case met the necessary criteria for appeal provided for under the Constitution. Those criteria were whether the appeal involved a point of law of general public importance or it desirable in the interests of justice.

Data halls

While the board argued the High Court’s dismissal of the objectors’ case involved applying well-established principles of European law to the facts of this case, it had to be acknowledged that issues of principle operate at “different levels of generality”, it said. There may still potentially be issues of importance concerning the way those general principles are to apply in a particular category of case, it said.

The court was not persuaded it could safely be said there might not be a point of law of general public importance concerning the application of the broad general principles to this category of case.

It was not saying such a point does arise, but rather it would have to consider whether it does. If so, it would have to consider whether it must make a reference to the CJEU concerning provisions of the EU Treaty applying to a court of final appeal.

In those circumstance, the court said it was granting leave to appeal but would make specific directions in future case management hearings for speedy conduct of the appeal, including whether there should be a preliminary hearing on the specific issue of whether to make a reference to the CJEU.

The applicants sought a Supreme Court appeal after the High Court’s rejection of their case last October.

Their counsel, Oisín Collins BL, argued the Board was legally obliged to carry out an environmental impact assessment (EIA) of Apple’s entire “masterplan” for eight data halls, which would increase total demand on the national grid by 6-8 per cent, and not an EIA of just one hall.

The overall grid connection planned at Athenry would have a footprint equal to Dundrum town centre but there is no national assessment and no strategic assessment concerning how data centres being built across the country will be supplied with energy, he said. The Board and Apple opposed an appeal.