Patrick McGreal v The Minister for Housing, Local Government and Heritage of Ireland

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 06 December 2024
• Neutral Citation: [2024] IEHC 690
• Court: High Court
• Docket Number: [H.JR.2024.0000588]

Between

Patrick McGreal

Applicant

and

The Minister for Housing, Local Government and Heritage of Ireland

Respondent

[2024] IEHC 690

[H.JR.2024.0000588]

THE HIGH COURT

PLANNING & ENVIRONMENT

Planning and environment – Exempted development – Judicial review – Respondent seeking to discharge leave order – Whether the criteria for discharge had been met

Facts: The applicant, Mr McGreal, sought the following reliefs: (1) an injunction preventing the use of the Planning and Development (Exempted Development) (No. 4) Regulations 2023; (2) an injunction preventing the movement of displaced persons or persons seeking international protection throughout the state into accommodation that is not within the scope of the provisions of the Planning and Development Act 2000; (3) an injunction preventing the movement of displaced persons or persons seeking international protection throughout the state into accommodation that is not within the s

cope of the provisions of the Constitution; (4) a prohibition preventing action being taken to accommodate any displaced persons or persons seeking international protection outside the provisions of the 2000 Act; (5) a prohibition preventing action being taken to accommodate any displaced persons or persons seeking international protection outside the provisions of the Constitution; (6) a declaration that any action being taken to accommodate any displaced persons or persons seeking international protection must adhere to the provisions of the 2000 Act; and (7) a declaration that any action being taken to accommodate any displaced persons or persons seeking international protection must adhere to the provisions of the Constitution. The applicant having been granted leave to challenge the regulations in the abstract without reference to a specific development, the State sought to discharge the leave order. The issue was whether the criteria for discharge had been met.

Held by the High Court (Humphreys J) that the applicant had succeeded in identifying a potentially arguable point in relation to the regulations, namely the reasonableness of the conclusion that the impacts of such developments were limited so as to warrant exemption. However, Humphreys J found that he could say with the benefit of full inter partes argument not available at the leave stage that to progress that point the applicant would need to: (i) confine the grounds to that arguable point or other arguable points (if any); (ii) plead that point in legally correct and particularised terms; (iii) set out factual matters sufficient to ground such a point; (iv) plead appropriate declaratory relief; (v) join the appropriate respondents; (vi) name such respondents correctly; (vii) situate the challenge in the context of an appropriate challenge to a specific development or proposed development; (viii) bring such a challenge within eight weeks of that development taking place, in the case of an after-the-event challenge, or in anticipation of the development, in the case of an apprehended step; (ix) depose to facts demonstrating standing in such a factual context; and (x) omit any inappropriate matter from his papers. As the applicant had not done any of this, and as some of those problems were not matters that could be solved by permissible adjustment of the precise formulation of the pleaded case, Humphreys J held that leave must be discharged. He held that this was without prejudice to the right of the applicant to seek relief in any future properly pleaded proceedings.

Humphreys J, pursuant to the inherent jurisdiction of the court, set aside the order of the court granting the applicant leave to apply for judicial review.

Leave order discharged.

(II)

JUDGMENT of Humphreys J. delivered on Friday the 6th day of December 2024

1 . The applicant seeks to challenge exempted development regulations which facilitate housing of international protection seekers and displaced persons. The applicant having been granted leave to challenge such regulations in the abstract without reference to a specific development, the State now seeks to discharge the leave order. The issue is whether the criteria for discharge have been met.

Judgment history

2 . The applicant, a litigant in person, has brought previous proceedings in order to challenge particular accommodation facilities in County Tipperary, on the basis of the purported invalidity of Planning and Development (Exempted Development) (No. 4) Regulations 2023 (S.I. No. 376 of 2023) ( the 2023 regulations), in proceedings numbered 2024 No. 971 JR. On 31st July 2024, the applicant's ex parte application for an injunction seeking to restrain the use of those accommodation facilities was refused by Holland J.: McGreal v. Minister for Housing [2024] IEHC 520 (which I will refer to as McGreal I). As the State emphasises, that application was made on similar grounds but in the context of a challenge to the use of a particular accommodation facility, the present proceedings seek to impugn generally the validity of the 2023 regulations without reference to any particular accommodation facility. To distinguish, these proceedings can be referred to as McGreal II.

Facts

3 . There are no specific facts related to any specific development involved in the challenge. The point made is a general and abstract one, so the background is addressed in legal analysis below.

Procedural history

4 . By ex parte docket dated variously 29th and 30th April 2024, with the record number of the present proceedings, the applicant sought a number of reliefs against the respondent, including injunctive relief, declaratory relief, and relief by way of prohibition, to prevent the provision of accommodation to displaced persons and persons seeking international protection in the State.

5 . The actual date was presumably 30th April 2024 because the record number was assigned on that date when a statement of grounds was filed.

6 . Whatever about seeking an injunction in the ex parte docket, there was no basis to seek prohibition or declarations because those would be for a substantive hearing of a judicial review. The ex parte docket should have sought leave to seek those reliefs.

7 . The applicant's ex parte application came on for hearing before Hyland J. on 30th April 2024 whereupon Hyland J. naturally enough declined to grant the applicant the reliefs being sought, noted that no application for leave to apply for judicial review had been made, and adjourned the matter for mention to 17th June 2024, when an application for leave to seek judicial review could be brought.

8 . On 17th June 2024, the applicant applied ex parte for leave to apply for judicial review seeking the following reliefs:

“(1) Injunction — prevent the use of S.I. No. 376/2023 — Planning and Development (Exempted Development) (No 4) Regulations 2023.

(2) Injunction — prevent the movement of displaced persons or persons seeking international protection throughout the state into accommodation that is not within the scope of the provisions of the Planning and Development Act 2000.

(3) Injunction — prevent the movement of displaced persons or persons seeking international protection throughout the state into accommodation that is not within the scope of the provisions of the Constitution of Ireland.

(4) Prohibition — prevent action being taken to accommodate any displaced persons or persons seeking international protection outside the provisions of the Planning and Development Act 2000.

(5) Prohibition — prevent action being taken to accommodate any displaced persons or persons seeking international protection outside the provisions of the Constitution of Ireland.

(6) Declaration — A declaration that any action being taken to accommodate any displaced persons or persons seeking international protection must adhere to the provisions of the Planning and Development Act 2000.

(7) Declaration — A declaration that any action being taken to accommodate any displaced persons or persons seeking international protection must adhere to the provisions of the Constitution of Ireland.”

9 . On 17th June 2024, Hyland J. granted the applicant leave to apply for judicial review for all of the reliefs on the grounds set out in the applicant's statement required to ground his application for judicial review dated 29th April 2024.

10 . The respondent was served with the applicant's judicial review papers on 19th June 2024.

11 . The substantive notice of motion was filed on 25th June 2024.

12 . On 24th October 2024, the respondent filed a notice of motion seeking to set aside leave, grounded on the affidavit of an official of the Department of Housing, Local Government and Heritage.

13 . The applicant replied by affidavit filed on 11th November 2024. Two points stand out.

• (i) Firstly, a number of provisions of the affidavit, including paras. 50 to 68 (alleging fraud and perjury by various persons) and 122 to 129 (irrelevantly alleging bias in previous proceedings) and 165 (alleging perjury) and 195 (possible offences) are dubious on various grounds. The State in correspondence of 27th November 2024 raised the issue of striking out inappropriate averments under O. 41 r. 16 RSC, specifically at paras. 50 to 84 and 172 to 175. At the hearing the State did not make any formal application but reserved its position in that regard.

• (ii) Secondly, it is not permissible to expand the pleaded case by way of affidavit. That brings us to the question of how much latitude a court should allow in permitting a litigant in person to amend a statement of grounds in order to incorporate points that are not properly pleaded but are elsewhere in her papers. I will come to that later.

The 2023 regulations

14 . At the risk of generalisation, the main categories of persons requesting reception provision on arrival in the State are individual applicants for asylum/ subsidiary protection, who arrive...