It has been just a little under three years since Apple announced that it hoped to build an €850m data centre in Athenry, County Galway. The proposed development was to employ 100 people and would be one of the most significant investments ever made in the West of Ireland. The planning application was lodged following consultation in September 2015. Galway County Council granted permission following a request for further information. The application was appealed to An Bord Pleanála, who granted permission in August 2016. The decision was appealed by way of Judicial Review. Mr Justice Paul McDermott of the Supreme Court upheld the planning decision. It now appears likely that the planning application will be appealed to the European Court of Justice. The saga continues.
The Apple data centre case has already seen a plethora of coverage, hand wringing and outrage. The coverage has suggested that a small group of objectors, some clearly legitimate, some potentially less so, have held up a major infrastructure project. The fact that this project involved a major international investor, a household brand, and which also had broad community support, ensured that this story was of significant public interest.
The furore has prompted the Taoiseach to indicate that data centres could join the list of projects which may be included under the Strategic Infrastructure Development (SID) planning process. The SID process sees certain planning applications for large infrastructure projects of national or regional importance skip the Local Authority planning application stage and move directly to An Bord Pleanála for decision - a one-stage rather than the standard two-step process.
Examples of recent SID applications include the National Maternity Hospital, some electricity substations, large wind farm developments, upgrades at Dublin Port and major road infrastructure projects.
The SID process was first introduced in the last decade as a solution to delays in getting large infrastructure projects built. The logic was that these projects were going to end up going to An Bord Pleanála anyway, so why not send them straight there, bypassing the more political Local Authority stage.
Since then, the Strategic Infrastructure Division of An Bord Pleanála has been kept busy, but the goal that it would be the final arbiter, speeding up planning cases, may have been wishful thinking. It was planned that SID decisions would be final, with appeal to the courts the only option for those unhappy with the outcome. But judicial review applications to the courts are becoming more and more common, particularly in contentious cases.
Judicial review cases do not generally consider the planning merits of a decision. The Courts have strong views about respecting the planning expertise of An Bord Pleanála and are reluctant to second guess it. Rather, the courts confine themselves to whether the law was properly interpreted. But this is not always straightforward. European and International Law have significant influence, and have often been transposed into Irish law in imperfect ways follwing significant delay. This leaves the courts with quite a lot to interpret. Where there is room for interpretation, there is rich fodder for objectors.
Directives such as The Habitats Directive, The Birds Directive and The Environmental Impact Assessment Directive, although updated from time to time, are not new, yet Irish project developers continue to fall foul of them. The Aarhus Convention regarding citizens’ access to information, participation and justice in environmental decision making is somewhat newer and is increasingly the basis for legal challenges to planning decisions.
Appeals are becoming more and more detailed. Planning applications require greater consultation and must be based on more robust environmental assessments. As one wind farm developer commented to me recently; “getting through An Bord Pleanála is increasingly often the halfway point.”
So by all means include data centres in the SID process, but, don’t believe for one moment that it solves the deeper issues. If SID was a guarantee of timely planning outcomes, the current workload of the Commercial Court and Courts of Appeal would be significantly lighter. If the Government and the next Government are serious about sorting this mess, they will transpose EU directives in a more timely and clear fashion.
Objections and appeals are an important part of any planning process. The people of Athenry had a right to object to this process and they have a right to an independent appeal. Certainty of process is important too. Increasingly in Ireland, from Apple to Eirgrid and many other projects along the way, there seems to be little certainty of process to either side, both the developer and the objector. This needs to improve. It is not only costing jobs, it is calling into question the legitimacy of our planning system. In cases far less high profile than Apple’s data centre, the same issues are arising over and over.
While we wait for a real solution to the problem, the wise project promoter will engage early and extensively with communities, building a robust environmental assessment of their project.
For further information on the Strategic Infrastructure Development process: http://www.pleanala.ie/sid/index.htm
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