The High Court has refused Patrick McGreal’s motion to set aside an earlier order concerning his challenge to planning regulations, saying the procedural route was presumptively an appeal to the Court of Appeal.
In an ex tempore judgment delivered on 17 February 2025, Mr Justice Humphreys considered a motion filed on 28 January seeking to set aside his 6 January order. That earlier order, made on the Minister’s application, had set aside an order by Ms Justice Hyland granting McGreal leave to bring judicial review proceedings.
The judge noted that McGreal’s judicial review challenged the validity of the regulations generally, rather than a particular decision or executive act under them. He accepted that the High Court has jurisdiction to determine the regulations’ validity and that a measure of general application with ongoing effect may be challenged in new situations. He also acknowledged that arguable grounds may, in an appropriate case, be sufficient to obtain leave to challenge a statutory instrument.
However, the judge said those points did not establish that a High Court motion was the proper procedure for setting aside the 6 January order. Although limited exceptions to the usual appeal route exist, he found they did not apply. The only exception that might theoretically be relevant was new evidence unavailable at the time.
McGreal had produced a letter from the Ceann Comhairle stating that a Dáil resolution had reduced the quorum from 20 members to five. The letter related to McGreal’s argument that the instrument had been adopted without a quorum. The judge said this development did not improve McGreal’s position, and the quorum issue was not the basis for discharging the leave order. He said that order had been discharged because the challenge was abstract and lacked a specific factual context.
The judge also rejected the argument that the Minister was required to enter an appearance in the judicial review. He said the Rules of the Superior Courts did not make an appearance mandatory in judicial review unless the court directed one in a particular case, while expressing sympathy for the argument’s practical merits.
The motion was refused. On costs, the judge said the not-prohibitively-expensive rule prima facie applied and had not been displaced by the State. He considered that determining a suitable costs amount would be disproportionate, and made no order as to costs. He also said a series of McGreal’s applications had lacked merit and described steps seeking or threatening criminal summonses against the Minister and a High Court judge as highly concerning. He said an Isaac Wunder order application was the only effective mechanism in such circumstances, but was initially a matter for the Attorney General.