There is no public health justification for regulations under which construction works at Intel’s Leixlip plant can proceed while private housing cannot be built in Dublin, the High Court has been told.
Rossa Fanning SC, for Blue Whisp, a company of developer Paddy McKillen junior, made the comment during a pre-trial application in the firm’s proceedings challenging an aspect of the regulations permitting 40 cent of the construction sector to operate but preventing the other 60 per cent doing so.
Counsel opposed an application by Caren Geoghegan SC, for the Minister for Health, to be permitted time to April 12th to provide an affidavit by public health specialist Dr Emer Shelley.
Mr Fanning, who stressed his client does not dispute there is a public health emergency and accepts the Minister faces difficult decisions in how best to address it, said such evidence is not necessary to decide the “narrow” issue in the case and should be deemed inadmissible.
Discriminatory treatment
The net issue is whether, when making the regulations, there was any material before the Minister to justify the discriminatory treatment between different types of construction activity, he said.
His client’s complaint is what public health advice justified the Minister in treating the construction sector as he did.
What can Professor Shelley say now that will answer that complaint, he asked. He very much doubted Professor Shelley will say there is a public health requirement for work on private housing to stop while work on public housing can proceed, counsel added.
He apprehended the Minister had favoured certain types of industry, perhaps as a result of representations from the Industrial Development Authority, on non public health grounds and the court should not be “side-tracked” by any attempt to justify that after the event.
On what basis can an Intel factory be built in Leixlip but not private housing in Dublin, he asked.
This case was listed for mention on April 13th next when he hoped it would get an urgent hearing date, and he was concerned delivery of this affidavit on April 12th might delay it, Mr Fanning said.
The matter remains urgent because his client does not know whether or not construction will be further opened up next month, he said.
Disputed regulations
Ms Geoghegan said her side has complied with tight time schedules and have delivered their opposition papers as directed by the court, within three weeks of the case having been initiated.
Due to various commitments, Prof Shelley cannot provide her affidavit until April 12th, counsel said. The claims by Blue Whisp include the disputed regulations are irrational and unjustifiable, and it is entirely reasonable for her side to adduce evidence from the public health expert, she said.
She had previously indicated to the court there might be a delay in furnishing this affidavit, she said.
In exchanges with Mr Fanning, Mr Justice Charles Meenan asked wasn’t public health at the centre of all the regulations. There may well be public health reasons why one type of construction activity poses a risk but another does not, he remarked.
Mr Fanning responded that was not being said by the State, and he would be “very surprised” if it made that case.
While accepting the matter is urgent, the judge said he would extend time to April 12th for delivery of Professor Shelley’s affidavit. It would be for the trial judge to decide if that affidavit is admissible or not and the matter will return to court for mention, as previously directed, on April 13th, he said.
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 5th.
The firm claims the Minister has unlawfully introduced “selective exemptions” for apparently “politically expedient” construction projects, primarily public sector and multi-national backed projects.
The firm says the regulations have resulted in its development of 48 apartments on a site at Mount Merrion, Dublin, having been paused since January 8th.
