High Court refuses motion to set aside previous order due to abstract challenge lacking specific factual matrix.

[2025] IEHC 162

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000588]

IN THE MATTER OF ARTICLE 6, 15.2.1°, 15.2.2°, 35, 34, 38, 40.3.1°, 40.4.1°, 40.5,

40.6.1°, 45.1, 45.2(I), 45.2(II), 45.2(III), 45.2(IV), 45.4(1), 45.4(2) AND SECTION 10

AND SECTION 20 OF THE PLANNING AND DEVELOPMENT ACT 2000 AND S.I. NO.

376/2023 - PLANNING AND DEVELOPMENT (EXEMPTED DEVELOPMENT) (NO. 4)

REGULATIONS 2023

BETWEEN

PATRICK MCGREAL

APPLICANT

AND

THE MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE OF IRELAND

RESPONDENT

II

(No. 3)

JUDGMENT (EX TEMPORE) of Humphreys J. delivered on Monday the 17th day of February

2025

1. What is before the court is the notice of motion filed 28th January 2025, dated 13th January

2025 and returnable for 17th February 2025, seeking an order setting aside my order of 6th January

2025, perfected on the same day and not appealed. That was an order made on the application of

the respondent setting aside an order of Hyland J. granting leave on the 17th June 2024.

2. First of all, I acknowledge that the applicant has quite correctly and clearly distinguished

between the legality of the regulations and the policy behind them and has attempted to concentrate

his fire on the legal issues.

3. Secondly, it is also absolutely correct that the applicant’s judicial review was about the

validity of the regulations rather than any particular legal or administrative decision or any executive

act under the regulations.

4. Thirdly, it’s also entirely correct that the validity of the regulations is something that the

High Court has jurisdiction to determine.

5. Fourthly, it is also true as the applicant suggests, that a measure of general application, if it

has ongoing effect can be challenged from time to time as it applies to new applicants and new

situations.

6. Fifthly, as I said in the No. 1 judgment (McGreal v. Minister for Housing II (No. 1) [2024]

IEHC 690 (Unreported, High Court, 6th December 2024)), it is also valid to contend that there may

be a basis in an appropriate case for advancing arguable grounds sufficient to get through the leave

stage to challenge the statutory instrument – a conclusion which is consistent with Hyland J.’s

decision granting leave.

7. Sixthly, just for the avoidance of doubt, there is no issue from me in relation to Mr McGreal’s

entitlement to object to this statutory instrument or for that matter any issue of government policy

related to it.

8. The problem with the present motion is that, presuming I was wrong in making the order

just referred to, it doesn’t follow that an application to the High Court to set aside the order is the

correct procedural route. Presumptively the correct route is to appeal to the Court of Appeal.

9. While there are some exceptions to that in limited circumstances, as noted in Lavery v. DPP

(No. 3) [2018] IEHC 184, [2018] 3 JIC 1310 (Unreported, High Court, 13th March 2018) and Nolan

v. Carrick & Ors. [2013] IEHC 523, [2013] 10 JIC 2505 (Unreported, High Court, Dunne J., 25th

October 2013), those circumstances don’t apply here.

10. Indeed, the applicant hasn’t engaged in any meaningful way with those exceptions and his

submissions were primarily, albeit understandably, devoted to stating that I was wrong.

11. The only potential exception that could even theoretically be relevant here is the emergence

of new evidence that wasn’t available originally.

12. Now arguably to some extent the applicant has identified new evidence by producing a letter

from the Ceann Comhairle stating that the quorum has been reduced by resolution of the Dáil from

20 to 5 members (which is relevant to his argument that the impugned instrument was adopted

without a quorum being present). That wasn’t something made available originally by either the

applicant or the State. Had anything particularly turned on it, a court might possibly be induced to

consider whether the matter should be looked at afresh.

13. But the problem for the applicant is firstly that the reduction of the quorum – or the

purported reduction since the applicant doesn’t accept that it was valid – is a development that

doesn’t benefit the applicant. If the leave order should be discharged on the basis of a quorum of

20, the fact that the quorum was actually less doesn’t improve the applicant’s position.

14. But secondly the quorum issue is in effect obiter anyway because the ground on which the

leave order was discharged was the abstract nature of the challenge in a context where there was

no specific factual matrix raised by the applicant.

15. As regards the issue of whether the respondent should have entered an appearance, the

problem for the applicant is that the rules on appearances don’t apply to O. 84 RSC as things stand

at the moment. That current situation does create numerous anomalies, and procedures would

benefit from a more streamlined approach requiring appearances across the board in proceedings

generally, so I do have sympathy for the applicant’s point on its merits.

16. But as a legal point, as matters stand, an appearance isn’t mandatory under the Rules of

Superior Courts in judicial review. The argument is sometimes made that an appearance by

opposing parties isn’t necessary because they will file a statement of opposition in due course, but

that is a considerable oversimplification because a lot can happen procedurally before we even get

to a statement of opposition as indeed the present application illustrates. But as I said, as matters

stand, an appearance isn’t required in judicial review unless or until the court directs that to happen

in a particular case.

17. So the punchline is that the applicant is in the wrong court at this stage of the procedure

and he should make his point to the Court of Appeal.

18. So accordingly the relief sought in the notice of motion is refused.

Costs

19. As regards costs first of all I agree with the State that the motion was bound to fail. The

first issue is whether the not-prohibitively-expensive (NPE) costs rule applied in the first place.

Prima facie, that rule did apply given the origin of the impugned statutory instrument as a measure

adopted under ss. 4(2) and 262 of the Planning and Development Act 2000. The State hasn’t

demonstrated that that prima facie position is incorrect.

20. The next issue is whether the NPE costs rule applies following the dismissal of the

proceedings. Prima facie, once the rule applies it continues to apply, and again it seems to me that

the State hasn’t displaced that prima facie position either.

21. That then leaves us with the question whether costs should be awarded on an NPE basis.

22. The problem for the State in that regard is that costs are normally an ineffective deterrent

for applications of this type due to the NPE rule, because the effort in determining what costs would

be not prohibitively expensive would be excessive and disproportionate having regard to the benefit

involved, if any.

23. I do, however, agree with the State that a series of applications made by this applicant have

unfortunately been lacking in merit. Certainly, steps seeking or threatening to seek criminal

summonses against the Minister and against a judge of the High Court are highly concerning. The

only effective mechanism in circumstances such as these is an Isaac Wunder order application, but

that is a matter for the Attorney General in the first instance. The punchline in the circumstances is

no order as to costs simply due to the disproportionate effort in determining what level of costs

would be not-prohibitively-expensive for the particular applicant concerned.