Malone v GCHL and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 04 February 2025
• Neutral Citation: [2025] IEHC 83
• Docket Number: Record No. 2023/94MCA

Between/

David Malone

Applicant

and

GCHL Limited

First Named Respondent

and

Environmental Protection Agency

Second Named Respondent

and

Kildare County Council

First Named Notice Party

and

Balyna Environmental Action Group

Second Named Notice Party

[2025] IEHC 83

Record No. 2023/94MCA

AN ARD-CHÚIRT

THE HIGH COURT

Costs – Preliminary application – Environment (Miscellaneous Provisions) Act 2011 s. 3(1) – Second respondent seeking costs – Whether the no costs default provision in s. 3(1) of the Environment (Miscellaneous Provisions) Act 2011 applied

Facts: The High Court (Bradley J), in the principal judgment ([2024] IEHC 336), determined in a preliminary application brought by the second respondent, the Environmental Protection Agency (the Agency), that there was no jurisdictional basis for the specific relief sought against the Agency in an ‘enforcement action’ brought by the applicant, Mr Malone, under s. 160 of the Planning and Development Act 2000 and s. 57 of the Waste Management Act 1996 against the first respondent, GCHL Ltd, in the context of the restoration of the former Ballinderry quarry pit by that company. Mr Malone had sought to prohibit the Agency from determining the waste license application made to it by GCHL Ltd for the restoration of the quarry pit. The Agency applied for costs arising from the principal judgment. The Agency equated the finding in the principal judgment, that the relief sought in paragraph 5 of the notice of motion dated 30 March 2023 had no jurisdictional basis (and, if necessary was bound to fail and represented an abuse of process) having regard to the remedies available as per the statutory and regulatory enforcement process in the planning and waste management codes, as satisfying the effective disapplication - in s. 3(3)(b) of the Environment (Miscellaneous Provisions) Act 2011 (i.e., the manner in which Mr Malone conducted the proceedings) or, in the alternative, s. 3(3)(a) of the 2011 Act (i.e., the application was frivolous and vexatious) - of the no costs default provision in s. 3(1) of the 2011 Act. The effect of the Agency’s position was that Bradley J should grant it the costs of its application against Mr Malone but initiate a process of measuring those costs.

Held by Bradley J that whilst the interpretative obligation in the context of the ‘not prohibitively expensive’ (and the Aarhus Convention) and the provisions of the 2011 Act allows a court in an appropriate case to award costs, or a portion of costs, against an applicant or plaintiff, he was of the view that the default scenario of no order as to costs was the appropriate order in this case. He noted that the Oireachtas had legislated so as to make provision that applicants in certain types of proceedings and scenarios may not in certain circumstances, if they are unsuccessful in those proceedings or a part of same, have costs ordered against them, for example, as per s. 50B of the 2000 Act and Part 2 of the 2011 Act, in particular ss. 3,4 and 7 of the 2011 Act, citing Heather Hill Management Company CLG v An Bord Pleanála & Ors [2022] IESC 43. As he had determined that the default scenario of no order as to costs applied on the facts of the case, he held that it was unnecessary to engage in the process of measuring costs.

Bradley J made no order as to costs in relation to the Agency’s application regarding paragraph 5 of the notice of motion dated 30 March 2023.

No order as to costs.

(No. 2)

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 4 ^th day of February 2025

INTRODUCTION

1 In Malone v GCHL Ltd & The EPA & Ors [2024] IEHC 336 (‘the principal judgment’), I determined in a preliminary application brought by the EPA (“the Agency”) that there was no jurisdictional basis for the specific relief sought against the Agency in an ‘ enforcement action’ brought by Mr. Malone under section 160 of the Planning and Development Act 2000 (as amended) and section 57 of the Waste Management Act 1996 (as amended) against GCHL Ltd., in the context of the restoration of the former Ballinderry quarry pit by that company.

2 Essentially, Mr. Malone had sought, as part of the suite of reliefs in the enforcement action brought against GCHL Ltd, to seek an additional relief and to prohibit the Agency from determining the Waste License application made to it by the GCHL Ltd for the restoration of the quarry pit.

3 Consequently, Mr. Malone's enforcement action as against GCHL Ltd (referred to in the Notice of Motion as ‘the first named Respondent’) continues in the following format and the fifth relief sought as against the Agency has been struck out arising from the principal judgment:

“ (1) An Order for the first named Respondent, their successors and assigns, to cease forthwith the unauthorised developments, consisting of the excavation and processing of quarry materials, together with the importation of waste at the Ballinderry Quarry, Carbury, County Kildare prior to the first named respondent having the unauthorised development regularised by receiving substituted consent from An Bord Pleanála in accordance with section 177C(1) [of the Planning and Development Act 2000 (as amended)];

(2) An Order for the first named Respondent, their successors and assigns, to prohibit any further unauthorised disposal of waste at the Ballinderry Quarry Carbury, County Kildare pending the first named Respondent being in receipt of a waste licence from the second named Respondent in accordance with section 40 of the Waste Management Act, 1996 as amended;

(3) An Order for the first named Respondent to have the waste illegally disposed at the Ballinderry Quarry, Carbury, County Kildare removed by an authorised contractor and shall be taken to a waste facility authorised to accept such waste materials;

(4) an Order compelling the first named Respondent to return the Ballinderry Quarry, Carbury, County Kildare to its previous condition prior to the unauthorised developments taking place as a result of a breach of Condition 4 of An Bord Pleanála permission reference: — PL09.205039;

(5) an Order prohibiting the second named Respondent processing the waste licence application reference W0298-001 prior to the first named Respondent submitting a Remedial Environmental Impact Assessment Report and Remedial Nature Impact Statement to An Bord Pleanála seeking substitute to consent in accordance with section 177C(1) of the [Planning and Development Act 2000 (as amended)] ; 1

(6) Applicant's costs;

(7) Any such further or other order as this Honourable Court deems meet.”

4 This is the Agency's costs application arising from the principal judgment.

5 As the consequence of the principal judgment is effectively to release the Agency from the proceedings as a respondent in the enforcement action, it is appropriate that I determine the costs of the preliminary application.

THE POSITION OF THE AGENCY

6 In summary, the Agency equates the finding in the principal judgment, that the relief sought in paragraph 5 of the Notice of Motion dated 30 ^th March 2023 had no jurisdictional basis (and, if necessary was bound to fail and represents an abuse of process) having regard to the remedies available as per the statutory and regulatory enforcement process in the planning and waste management codes, as satisfying the effective disapplication – in section 3(3)(b) of the Environment (Miscellaneous Provisions) Act 2011 (“the 2011 Act”)) ( i.e., the manner in which Mr. Malone conducted the proceedings) (or, in the alternative, section 3(3)(a) of the 2011 Act ( i.e., the application was frivolous and vexatious) — of the no costs default provision in section 3(1) of the 2011 Act.

7 The effect, therefore, of the Agency's position is that I should grant it the costs of its application against Mr. Malone but initiate a process of measuring those costs. The Agency points to correspondence which it sent to Mr. Malone prior to bringing this preliminary application which called upon him to discontinue the proceedings as against it. Mr. Malone refused to do so, which necessitated the bringing of this application in which they ultimately succeeded.

8 It was submitted on behalf of the Agency that the 2011 Act applies and that the enforcement action falls within the scope of section 4 of the 2011 Act ('civil proceedings relating to certain licences, etc.) and therefore, section 3 of the 2011 Act applies. The Agency contends that the exceptions in section 3(3)(a) and (b) of the 2011 Act to the default position that the costs of the proceedings are to be borne by each party, are applicable on the facts of this case, i.e., a court may award costs against a party in proceedings to which this section applies if the court considers it appropriate to do so: (a) where it considers that a claim or counter-claim by the party is frivolous or vexatious; or (b) by reason of the manner in which the party has conducted the proceedings.

9 Assuming section 3(3) of the 2011 Act applies, the Agency submits that a process of measuring costs is required by virtue of the interpretative obligation arising from Article 9 of the Aarhus Convention and that Mr. Malone should have an opportunity to adduce evidence on Affidavit to address these matters to ensure that any costs order is ‘ not prohibitively expensive’ (NPE) and refers to a series of authorities, including, Case C-260/11 Edwards & Pallikaropoulos v Environment Agency, ECLI:EU:C:2013:221, Hunter v Nurendale t/a Panda Waste [2013] IEHC 430, [2013] 2 I.R. 373, Kelly Dunne v Guessford Ltd [2022] IEHC 427, and Klohn v An Bord Pleanála [2021] IESC 51.

10 On behalf of the Agency, reference was also made to the UK's Civil Procedure Rules, Part 46-Costs-Special Cases and the provisions in paragraph...