Malone and Another v Laois County Council and Others

• Jurisdiction: Ireland
• Judge: Mr Justice David Holland
• Judgment Date: 23 June 2025
• Neutral Citation: [2025] IEHC 345
• Court: High Court
• Docket Number: RECORD NO. 2025/17 MCA

In the Matter of An Application Under Section 160 of the Planning and Development Act 2000, As Amended

and

Article 19(1) of the Treaty of the European Union

Between:

David Malone

and

Thomas McEvoy

Applicants

and

Laois County Council

An Bord Pleanála

and

Booth Precast Concrete Limited

Respondents

and

Ireland and The Attorney General

Notice Parties

[2025] IEHC 345

RECORD NO. 2025/17 MCA

THE HIGH COURT

Planning & Environment

Contents

JUDGMENT OF MR JUSTICE DAVID HOLLAND DELIVERED 23 June 2025	4
INTRODUCTION	4
ORIGINATING NOTICE OF MOTION 14/1/25	5
NOTICES OF MOTION TO DISMISS/STRIKE OUT & MALONE/MCEVOY COUNTER-MOTION	7
REGULATORY HISTORY OF SITE	9
Permission PL95/300	9
Permission PL98/780	10
Quarry Registration	11
McEvoy S.160 Proceedings – 2005 to 2009	11
Permissions – 2006 – 2011	11
Waste Disposal Investigation — 2012	12
S.261A Determination — July 2012	12
Permissions 2022 – 2024	13
Complaints to the EU Commission	14
APPLICANTS, THEIR INITIAL EVIDENCE & THEIR SUBMISSIONS	14
Mr Malone — “Eurolaw Environmental Consultant”	14
Quotation in Submissions	18
Mr McEvoy	19
2009 Compromise	19
Malone Affidavit, 7 January 2025 – Factual Content	20
McEvoy Affidavit, 28 January 2025 – Factual Content	20
Malone Affidavit, 7 January 2025 & McEvoy Affidavit, 28 January 2025 – Legal Submissions	23
RESPONDENTS' EVIDENCE	26
The Board and Laois CC	26
Booth	27
RESPONDENTS' SUBMISSIONS	29
Submissions — Laois CC & The Board	29
Submissions — Booth	32
REPLYING EVIDENCE & SUBMISSIONS – MR MALONE & MR MCEVOY	33
Affidavits	33
Submissions	34
JURISDICTION TO DISMISS/STRIKE OUT	35
O.19 r.28 RSC & Inherent Jurisdiction	35
Frivolous or Vexatious	36
Keohane, Moylist & Scotchstone	37
Gleeson, Cinnéide & McHugh – 2024 & 2025	40
Mohan — 2025 & Prospect of Amendment	41
Henderson in Motions to Dismiss	43
Motions to Dismiss in Summary Proceedings	44
S.160 PDA 2000 & s.50 PDA 2000 as relevant & Quarrying: Works or Use	45
S.160 – “Planning Injunctions”	45
S.160 – Scope, Respondents & Remedies	46
Declaratory Jurisdiction in s.160?	47
Invalidation of Decisions — S.50 PDA 2000 – Procedural Exclusivity & Time Limits	49
S.160 – Time limits & Duration of Planning Permissions	52
TEU, TFEU, CFREU, GENERAL PRINCIPLES OF EU LAW & JUDICAL REVIEW AS EFFECTIVE REMEDY	54
Procedural Autonomy – Equivalence, effectiveness — Time Limits & Collateral Attack	55
Meadows — 2010	59
Narconon Trust — 2021 & Killross Properties — 2016	59
Krikke – 2022 & Four Districts — 2023	60
Effective remedy – One Only Required & Interpretive Obligation	63
Remedial Obligation — Krikke & Corridonia	64
MALONE v GCHL — 2025	66
McTigue Quarries — 2018 & Harte Peat – 2022	68
REFERENCE TO CJEU	69
CONCLUSIONS	70
Absence of Explanation of Failure to Seek Judicial Review	70
Permissions invalid as in breach of EU law?	71
Have Permissions PL95/300 and PL98/780 Expired?	71
Concrete Plant	72
Quarrying	72
Office Block	74
Other Unauthorised Development?	74
Waste Activities on Site?	75
Evidential Position – A Note	75
Positions of Board & Laois CC	75
Damages/Compensation	77
Enforcement of the 2009 Compromise	77
Jurisdiction & Orders	77
Appendix – Questions Proposed by Mr Malone for Preliminary Reference under Article 267 TFEU	78

JUDGMENT OF Mr Justice David Holland DELIVERED 23 June 2025

INTRODUCTION

1 The Applicants, Mr Malone and Mr McEvoy, who are lay litigants, seek pursuant to s.160 PDA 2000, 1 injunctions restraining alleged unauthorised development and requiring site remediation by the 3 ^rd Respondent (“Booth”) on lands at Ballymullen, Abbeyleix, County

Laois. I will use the term “Booth” as encompassing also its related companies, of which a precise account is unnecessary here. Booth operates there a sand and gravel pit and a concrete products manufacturing facility (“the Site” or “the Quarry” 2)

2 Significantly, Mr Malone and Mr McEvoy also seek various declaratory reliefs – essentially of various breaches of EU law by the first and second Respondents (“Laois CC” and “the Board”) in unlawfully granting various planning permissions relating to the Site (together, “the Permissions”). These are typified by, but not limited to, allegations that the Permissions are invalid as in breach of EIA law. 3 The alleged implication of such invalidity is that the developments the Permissions purport to permit are, in law, unauthorised and so within the purview of s.160 PDA 2000.

3 It bears observing at this point that the time-limits for seeking certiorari in judicial review quashing any of the Permissions have long since expired. Nor have Mr Malone and Mr McEvoy sought such judicial review or to extend the applicable time limits.

4 Before me for decision in this judgment are motions by each of the three Respondents to strike out or dismiss the proceedings as, essentially, bound to fail. There is also what might be called a counter-motion by Mr Malone and McEvoy seeking refusal of the Respondents' motions.

5 The Quarry was originally owned by a Mr Phil Butler. In 1996, Booth bought about 32 acres of it, including the concrete products plant. In 2005, Booth bought most of the rest of the Quarry from Mr Butler's widow, Kathleen Butler. Ms Butler retained, and operated on her own account, about 12 acres of quarry.

ORIGINATING NOTICE OF MOTION 14/1/25

6 The originating notice of motion (“the ONoM”) is entitled in the matter of an application under s.160 PDA 2000 and Article 19(1) TEU. 4 It claims relief as follows;

“1) An Order pursuant to Section 160 of the Planning and Development Act 2000, as amended, directing the third-named Respondent, along with their agents, servants, contractors, and any other persons or entities acting on their behalf or in association with them, to cease all unauthorised developments at the Ballymullen site within 14 days from the date of this Order. This includes, but is not limited to, developments referenced under PL95/300, PL98/780, PL06/24, PL10/288, PL10/289, PL10/290, PL22/253, and PL22/751.

2) An Order directing the third named Respondent to fully restore the Ballymullen site to its original state, before the unauthorised developments, within 6 months from the

date of this Order. This restoration shall include, without limitation, the complete removal of all waste, tanks, structures, lagoons, and any similar facilities associated with PL95/300, PL98/780, PL06/24, PL10/288, PL10/289, PL10/290, PL22/253, and PL22/751.

3) An Order directing the third named Respondent to prepare and submit, within the same six-month period, a detailed report to the relevant authorities. This report will provide a comprehensive account of all removal activities, including the methodologies employed, evidence of compliance with EU environmental standards. and verification by certified contractors.

4) A declaration that the Respondents have failed to implement the EIA Directive, Public Participation Directive, Habitats Directive, and Waste Framework, 5 in clear and unequivocal breach of their binding obligations under EU law. These obligations arise under Article 288 of the TFEU, 6 Article 4(3) 7 and Article 17 8 of the TEU, and Article 29.4.6 of the Irish Constitution, 9 reflecting their direct incorporation into the Irish legal framework and their supremacy within the European Union legal order.

5) A declaration that the Respondents have acted in contravention of Article 19(1) of the TEU 10 and Article 191 of the TFEU 11 by failing to implement the judgments of the CJEU 12 in Cases C-50/09, C-215/06, C-494/01, C-164/17, C-290/15, and C-258.11. This failure constitutes a breach of the legislative obligations arising from measures transposed into Irish law under Section 3 of the European Communities Act 1972, which give binding effect to these judgments. The Respondents' actions undermine compliance with EU law and the principles of effective legal protection and environmental protection enshrined in the Treaties.

6) An Order in compliance with Article 133 of the Rules of Procedure of the CJEU and the principles of equivalence and effectiveness safeguard the enforceability of EU law within national legal systems, that the Respondents, and any persons or entities acting on their behalf, pay damages to the Applicants, including but not limited to:

i. Full reimbursement of all costs and expenses incurred by the Applicants over the 25-year period, including those arising from earlier proceedings, submissions, correspondence, complaints, and litigation resulting from the Respondents' failure to comply with their obligations under EU law.

ii. Payment of compensation for financial and non-financial harm suffered by the Applicants, including stress, inconvenience, and emotional distress directly resulting from the Respondents' failure to fulfil their obligations under EU law.

iii. Any further or other relief as deemed necessary and appropriate by this Honourable Court to ensure full compliance with EU environmental law and its effective implementation within the domestic legal framework.

7 The ONoM does not invoke section 57 WMA 1996, 13 which provides for an injunctive jurisdiction as to breaches of that Act – a jurisdiction analogous to that provided by s.160 PDA 2000. Nor did Mr Malone or Mr McEvoy argue that they might seek to amend the ONoM to invoke s.57.

NOTICES OF MOTION TO DISMISS/STRIKE OUT & MALONE/MCEVOY COUNTER-MOTION

8 By Notice of Motion dated 2 April 2025, Laois CC seeks, pursuant to O.19 r.28 RSC 14 and/or the inherent jurisdiction of the Court, an order striking out the proceedings as...