State faces legal challenge to ‘discriminatory’ Covid-19 construction restrictions

The case is being taken by Blue Whisp Ltd, a company controlled by businessmen Paddy McKillen Jr and Matt Ryan which had been building an apartment block at the site of the old Kiely’s Pub in Mount Merrion, Dublin.

It is the second legal challenge launched by the two businessmen over Covid restrictions.

Their Press Up group, which has substantial interests in leisure and hospitality, also sued the State over restrictions closing pubs and restaurants last year.

The latest case involves claims that while certain types of construction work is exempt from restrictions, other types, such as the construction of private housing, are being unfairly discriminated against.

The application for a judicial review was moved this morning by Rossa Fanning SC, instructed by Leman Solicitors, for Blue Whisp Ltd.

The company is building 48 apartments, in a development known as The Pinnacle, but work has been suspended since January 8. It says there is a significant undersupply of housing in the area.

“We wish to bring an urgent challenge to the regulations on the basis they are irrational, disproportionate and discriminatory,” Mr Fanning told Mr Justice Charles Meenan.

He said it was an urgent and significant case. Regulations relating to what construction work can and cannot continue are due to be extended by the Government today.

“The significance of the case is that it would affect 60pc of the construction industry which is presently at a standstill. And there are very significant weekly costs being incurred by my client and clearly by other parties that would be interested in these proceedings,” said Mr Fanning.

The proceedings are against the Health Minister.

Mr Fanning said there had already been correspondence between his side and the minister in which minister rejected the claims being made.

The court heard that certain types of construction were exempt from restrictions, including work on hospitals, schools and critical transport infrastructure, but other types, including the construction work being undertaken at the Mount Merrion site, were not.

Mr Fanning said that in applying to strike down the regulations, his clients did not overlook the significant public health challenge posed by the pandemic.

“We accept the Government has had an unenviable task in seeking to strike a balance between protecting public health and permitting certain important economic activity,” he said.

“But we say this, and it is an important point. The criteria have to be based on public health.”

Mr Fanning said the minister, for example, can decide golf isn’t permitted. But it wouldn’t be permissible for the minister to say you can have golf on public courses but not on private courses or that men could play golf but not women.

“That would be a distinction in the regulations with no apparent connection to public health,” he said.

Mr Fanning said “public/private discrimination” was the “Achilles heel” of the construction regulations currently in place.

“There is a hotchpotch of different categories of construction, some of which are exempted and some of which are not. The exemption is determined by the purpose of the construction project, not by the public health effect,” he said.

Mr Fanning said construction on computer factories that manufacture microchips was exempt, as was building a data centre, or public housing construction that is about to conclude.

“But if I am engaged in the construction of private housing, that is excluded. We say that is a discriminatory criteria that is not relevant to public health,” he said.

Mr Justice Meenan ordered that the application be made on notice to the minister and adjourned proceedings for a week.