High Court dismisses abstract challenge to planning regulations, requiring specific context for legislation review.

[2025] IEHC 163

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. 4)

JUDGMENT (EX TEMPORE) of Humphreys J. delivered on Monday the 10th day of March

2025

1. Mr McGreal’s original grievance was in relation to the provision of a specific accommodation

centre combined with a challenge to the statutory instrument permitting exempted development for

accommodation centres for international protection applicants. He instituted two sets of proceedings

in which the statutory instrument was challenged. One was related to a particular development. In

that case, Holland J. refused an injunction and subsequently the applicant discontinued those

proceedings. In these proceedings, the instrument was challenged in the abstract.

2. On 18th November 2024, I exempted the applicant from dealing with ShareFile, which he

didn’t want to do. That I suppose indicates that Practice Direction HC126 does have a degree of

flexibility, and if say a litigant in person in particular feels difficulties dealing with it, then I don’t see

any objection in principle in exempting them, albeit that puts a certain burden on the opposing

parties. The State have asked me to revisit that but I think that that will just complicate matters

and isn’t really necessary, and in fairness to them, they didn’t insist on that.

3. In the present action, Hyland J. originally granted leave to the applicant to challenge the

statutory instrument. On the State’s application, I set that aside on 6th December 2024, essentially

on the ground that the challenge was mounted in the abstract and thus was inappropriate. Having

regard to the fundamental architecture of the separation of powers, legislation has to be challenged

in a particular context, not simply on an abstract basis, as a general rule, and this case wasn’t an

exception to that.

4. Mr McGreal then indicated an intention to set that order aside, but his first stumbling block

was that he wanted to issue a motion without paying stamp duty. I refused that application on 16th

December 2024, essentially on the grounds that the concept of personal liberty and Article 40.4 of

the Constitution as referred to in the relevant statutory instrument regarding fees meant formal

applications over Article 40.4. Mr McGreal of course has a point on a philosophical level when he

says that personal liberty is a broad concept and isn’t limited to physical detention, and I wouldn’t

dispute that as a general proposition. But the order refusing the exemption of stamp duty was based

on the view that where the specific statutory instrument dealing with fees referred to Article 40.4 it

was not referring to personal liberty in the broad sense but was referring a specific application under

a specific constitutional provision, and a motion to set aside my order of 6th December 2024 does

not come within Article 40.4. So really it wasn’t massively more complicated than that.

5. Mr McGreal then applied to issue a criminal summons against the Minister. That was refused

by Holland J. on 20th January 2025. I understand that in correspondence he indicated he would

apply for a summons against Holland J. but I also understand he didn’t in fact do that.

6. Instead he came back to the court on 17th February 2025 with a motion to set aside my

order of 6th December 2024. I refused that ex tempore with no order as to costs bearing in mind

the not-prohibitively-expensive costs rule under the Aarhus Convention. I also suggested that

insofar as that the State considered that a costs order would be a deterrent, an application for an

Isaac Wunder order would be the more effective way to deal with any issues in that regard insofar

that the State was concerned about frivolous and vexatious applications.

7. The applicant has now come back with a second motion to set aside my order of 6th

December 2024. The reason that motion is misconceived is similar to the reason that his previous

motion was misconceived, in the sense that the normal way to set aside an order is to appeal it.

8. The present application does not meet the high threshold to revert to the High Court to set

aside its own order, and indeed does not come anywhere near that threshold. Essentially, the

applicant’s arguments about the validity of the quorum for meetings of Dáil Éireann are irrelevant

because they don’t affect the basis of the order setting aside the leave order. The basis of the order,

just by way of reminder, was the abstract nature of the challenge. Whether the challenge had merits

or not is irrelevant.

9. Now it also follows from my previous decision that the arguments don’t in fact have merit.

The lack of quorum being physically present doesn’t make the decision invalid on the reasoning I

set out in the previous judgment, albeit obiter. A similar reasoning applies to the lack of notice on

the order paper. These are all matters of indoor management for elected members of Dáil Éireann.

Rules about the order paper or the presence or absence of a quorum don’t confer rights on third

parties or individual citizens in the manner suggested by the applicant. Again for the avoidance of

doubt that’s obiter because the essential problem with the present application is the familiar one

from the previous application, the fact that it doesn’t address the impermissibly abstract nature of

the challenge.

10. The applicant claims that the letter from the Ceann Comhairle stating that the quorum had

been reduced is “false, misleading or inaccurate”, but no valid arguable basis for that has been

demonstrated. The applicant seems to be under the misapprehension that if people have a different

view of the law from him, then they are engaging in false statements. That is a profoundly

misconceived and improper position to take.

11. In any event, the applicant could have made all these points originally if he had investigated

the quorum situation at the time. So ultimately this application has no merit unfortunately. It is

somewhat concerning that it has been a part of a pattern of use of court proceedings in a particular

way and it is also somewhat concerning that the applicant has threatened unspecified escalations

albeit that he seems to now be saying in submissions that he means a plenary action against local

authorities. Finally it’s concerning that he wrote to members of the Dáil on 14th January 2025, as

exhibited in his latest affidavit (text in addendum), threatening them with a court application in

relation to parliamentary proceedings. That is prima facie highly concerning and improper having

regard to parliamentary privilege.

12. So with those comments, I have no alternative but to dismiss the motion.

Costs

13. Bearing in mind the presumption that once an applicant has costs protection, that should

continue, notwithstanding that an application might be frivolous and vexatious – and for the

avoidance of doubt, there is no question but that this application was frivolous, vexatious, an abuse

of process and/or bound to fail – costs protection should continue (albeit in principle at the not-

prohibitively-expensive level). The logical ramification of that is that while the applicant is in

principle liable for costs, they shouldn’t be prohibitively expensive. That in turn creates a

requirement to determine what would be prohibitively expensive for any given applicant.

14. That is not a matter for legal costs adjudication. The Chief Legal Costs Adjudicator has

jurisdiction to assess the proper level of costs awarded by the court but not the means of a party

which is a prerequisite to determine what would be prohibitively expensive for that party. So having

heard the parties the best order is simply to adjourn the issue of costs generally with liberty to apply.

If the State want to pursue costs, they can serve an estimate and then Mr McGreal can reply as to

whether that would be prohibitively expensive or not. Now of course as Mr McGreal says, this would

involve dragging the matter out to a further hearing so it’s up to the State to weigh the pros and

cons of that and decide what they want to do. With that said, I did indicate the last time that costs

may not necessarily be the most effective way of dealing with the concern about repeated

applications that are bound to fail, and the State did refer to that in correspondence.

Addendum

The text of the email to members of the Dáil is as follows:

“Patrick McGreal [email]; 14 January 2025 at 18:16

To: ceann.comhairle@...,

verona.murphy@...,

hildegarde.naughton@...,

leo.varadkar@...,

kieran.odonnell@...,

cian.ocallaghan@...,

richard.boydbarrett@...,

paul.murphy@...,

eoin.obroin@...

Dear Members,

I am writing to you in connection with your presence in Dáil Éireann on the 12th of July 2023, when

Statutory Instrument 376/2023 was passed under quorum. This matter pertains to a criminal charge

currently being pursued in the High Court involving allegations of false information provided to a

principal officer in a government department, which was subsequently filed into judicial proceedings.

Pursuant to Section 10 and Section 13 of the Petty Sessions (Ireland) Act, as well as Section 177 of

the Criminal Justice Act 2006, I am formally requesting your voluntary cooperation as a witness in

these proceedings. Specifically, I am asking if you would be willing to provide evidence voluntarily

regarding the events of that day.

If I do not receive a response by 5:00 PM tomorrow, the 15th of January 2025, I will proceed to

engage a statutory body to issue a formal request for your cooperation. Should you choose not to

reply or decline to give evidence voluntarily, I will, on Monday, the 20th of January 2025, make an

application before Justice Humphreys in the High Court for the issuance of summonses requiring

your appearance to provide evidence.

This case will be triable before a jury of 12, and your evidence will play an essential role in ensuring

justice is served. I urge you to consider this request and respond at your earliest convenience to

indicate whether you will provide your cooperation voluntarily.

Should you have any questions or wish to discuss this matter further, please do not hesitate to

contact me.

Thank you for your attention to this important matter.

Yours sincerely,

Patrick McGreal

[phone number]”