High Court bid to get entire construction sector re-opened likely to get early hearing

Paddy McKillen Junior's firm, Blue Whisp, claims the restrictions are irrational, disproportionate and unlawfully discriminatory
High Court bid to get entire construction sector re-opened likely to get early hearing

The case argues there is marginal evidence of Covid-19 infection associated with the 40% of the construction industry that is operating. File photo: Pexels

A challenge by a company of Paddy McKillen Junior over the extension of regulations preventing some 60% of the construction industry from operating has been adjourned to next month and is expected to get an early hearing date.

When the case returned before Mr Justice Charles Meenan at the High Court today, he agreed, on consent of the sides, to adjourn it to April 13, indicating he anticipated setting a early hearing date.

Blue Whisp, part of Mr McKillen’s Oakmount Group, has brought judicial review proceedings against the Minister for Heath over the extension of the regulations to at least April 5.

The firm claims the Minister has unlawfully introduced “selective exemptions” for apparently “politically expedient” construction projects, primarily public sector and multi-national backed projects.

Matthew Ryan, a director of the company, said in an affidavit the regulations have resulted in its development of 48 apartments on a site known as The Pinnacle in Mount Merrion, Dublin, which would deliver “badly needed housing” in an area of the city where demand is very high and supply very low, having been paused since January 8.

The company, and Oakmount, “do not remotely underestimate” the threat posed by Covid-19 to the health and well-being of the Irish population, do not question the reliability of the scientific evidence relied on by the Government and recognise the Government faces incredibly difficult policy decisions, he said.

Notwithstanding all of that, the company has formed the conclusion the new regulations are “objectively unjustifiable” and “do not serve a genuine health objective”, Mr Ryan said.

Rossa Fanning SC, with Stephen Walsh BL, for the firm, sought leave to bring the judicial review challenge last week, stressing it was very urgent because the continuing closure of activity means very serious commercial consequences for his client.

Mr Justice Meenan directed the leave application be made on notice to the Minister and returned the matter to today.

Constructive talks

Mr Fanning told the judge today there had been constructive discussions with the Minister’s side, represented by Michael Cush SC and Caren Geoghegan BL, about how to deal with the matter in the most efficient way.

While the Minister opposed leave for judicial review, he had consented to a telescoped hearing, meaning the leave application and the full hearing are heard together, counsel said.

The sides had also agreed on dates for the exchange of documents which would see the case back before the court on April 13 when he would be seeking a hearing date, Mr Fanning said.

The judge said that was all very constructive and adjourned the matter to April 13. He indicated, if the case would not take much more than two days as Mr Fanning suggested, it would get an early hearing.

Blue Whisp's claims

In its proceedings, Blue Whisp says it is not challenging the primary or secondary legislation introduced to slow the spread of the virus and rather is challenging one aspect of the regulations on grounds there is no basis in the primary legislation for the minister to have distinguished between different types of construction works and by exempting some kinds of works from the restrictions.

It claims the restrictions, and the failure to allow the entire construction sector to re-open, is irrational, disproportionate and unlawfully discriminatory and breach the Minister’s duties of fairness and equal treatment.

The exemptions for certain construction activities are being decided by the purpose of the construction project when Covid-19 does not distinguish between a data centre and a private housing development, it is claimed. That is “unjustifiable discrimination” and did not take into account the changes in the public health landscape since January.

There is marginal evidence of Covid-19 infection associated with the 40% of the construction industry that is operating, it is argued.

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