On 5 March 2021 Mr Justice Charles Meenan heard an ex parte application for judicial review brought by Blue Whisp Limited against the Minister for Health.

The application by Blue Whisp Limited, part of the Oakmount Group which is developing an apartment block located at Mount Merrion, was made on the basis that continued Covid-19 restrictions on construction activities are unlawful as being (1) irrational; (2) disproportionate; and (3) discriminatory towards the private construction sector.

The matter has been adjourned to 13 April 2021 to allow the State to set out its grounds of opposition to the application brought by Blue Whisp Limited to have the regulations restricting construction activities struck out; and so that a hearing date can be fixed.

The construction industry widely expects to resume all construction activity by 5 April 2021 when the current Statutory Instrument S.I. No. 95 of 2021 expires. Nonetheless, the legal challenge is important not only to pressurise the State but also to test the legality of the discriminatory nature of current regulations restricting certain construction activity but allowing others.

S.I. No. 95 of 2021 is a continuation of previous Statutory Instrument S.I. No. 29 of 2021, which in turn is a continuation of S.I. No. 4 of 2021.  

S.I. No. 95 of 2021 extends the current construction restrictions until 5 April 2021 when it will be reviewed further by the government.

Under S.I. No. 4 of 2021 the State has carved out a number of exemptions to ongoing construction restrictions including but not limited to the National Children’s Hospital and TU Dublin Grangegorman, projects in which the State is a very interested party. Other exempted activities include the construction of social housing but notably not private housing in which developers are obliged to provide Part V (of the Planning and Development Act 2000) social and affordable housing contributions.  

A curious exemption involves construction projects for the maintenance of supply chains which is vague enough to capture the construction activities of multinationals building microchip facilities and data centres.

In circumstances where the Covid-19 virus makes no distinction between one construction activity and another; and where this country fought its last election on the basis of housing supply, it is notable that the State in drafting these construction restriction regulations have thought in their wisdom to deem the construction of data centres for multinationals or State pet projects to have more importance to this country than the supply of housing. It speaks volumes about the priorities of our current government.

The Construction Industry Federation (CIF) have genuinely led in enabling its members and their employees to work in the safest possible environments notwithstanding the pandemic. The Covid-19 protocols in place are extremely detailed and have been adopted in most PSCS policy documents. These protocols are adopted by all members and each member’s employees are obliged to undertake a return to work induction programme. It matters not if CIF members are working on public or private State pet projects or indeed private housing or social housing or building data centres; they have universally signed up, applied and implemented a best in class safety work protocols at the workplace.

If those work practices are deemed safe on social housing State projects or FDI projects, then why not for the balance 60% of construction activity which is currently restricted.

Leman Solicitors are property and construction specialists. For further information please contact David Heatley or Larry Fenelon on 016393000.