Malone v GCHL Ltd and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 16 May 2024
• Neutral Citation: [2024] IEHC 336
• Court: High Court
• 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

[2024] IEHC 336

Record No. 2023/94MCA

THE HIGH COURT

JUDGMENT ofMr. Justice Conleth Bradleydelivered on the 16 ^th day of May 2024

INTRODUCTION

Preliminary

1 Mr. Malone, who is a litigant in person, has issued proceedings pursuant to section 160 of the Planning and Development Act 2000, as amended (“the 2000 Act”) and section 57 of the Waste Management Act 1996, as amended (“the 1996 Act”) (“the substantive application”).

2 The main focus of Mr. Malone's substantive application is the former Ballinderry quarry pit operated by the First Named Respondent, GCHL Ltd (“GCHL”). The site is a worked out sand and gravel pit and it is proposed to restore the quarry pit by the use of, inter alia, imported wastes. This in turn requires GCHL to apply, inter alia, for a Waste Licence from the Environmental Protection Agency (“the Agency”), which it did on 2 ^nd June 2018, and this application ( W0298-01) remains pending before the Agency at the time of the hearing of this motion in March 2024.

3 Whilst the issues in the substantive application are legally and factually complex, they involve similar type applications in the planning and waste management regulatory codes which are sometimes referred to as ‘ statutory injunctions’ and are part of the suite of ‘ enforcement’ actions available to address alleged planning or environmental irregularities. They share common features and are commenced, for example, by way of an originating notice of motion grounded on an affidavit. They seek to invoke the jurisdiction of the High Court (a similar jurisdiction exists in the Circuit Court insofar as planning matters are concerned) to make orders directing certain activities to be stopped and regularised. Both codes have been the subject of extensive jurisprudence of the Superior Courts and have involved, for example, complex questions of EU law.

4 In his substantive application (brought by way of the originating Notice of Motion dated 30 ^th March 2023), Mr. Malone seeks a number of reliefs under the 2000 Act and the 1996 Act, i.e., the statutory injunctions, which are primarily directed against GCHL in relation to their operation of the former Ballinderry quarry pit, including inter alia the following orders:

• • directing GCHL to cease, what is alleged by Mr. Malone to be, unauthorised development comprising the excavation and processing of quarry materials together with the importation of waste at the quarry prior to GCHL having the alleged unauthorised development regularised by receiving a substituted consent from An Bord Pleanála in accordance with section 177C(1) of the 2000 Act;

• • prohibiting GCHL from carrying out what Mr. Malone alleges is the unauthorised disposal of waste at the former Ballinderry quarry pending GCHL receiving a Waste Licence from the Agency in accordance with section 40 of the 1996 Act;

• • directing GCHL to have the waste, which has allegedly been illegally disposed of at the former Ballinderry quarry, removed by an authorised contractor and taken to a waste facility authorised to accept such waste materials;

• • compelling GCHL to return the former Ballinderry quarry to its previous condition prior to, what Mr. Malone alleges, is the unauthorised development taking place as a result of an alleged breach of Condition 4 of An Bord Pleanála's permission reference PL09.205039.

5 None of the above reliefs in the substantive application arise for consideration in this application now brought by the Agency.

6 In this regard, and in contrast to the four reliefs sought against GCHL (as set out above), Mr. Malone also seeks – as the fifth relief (at Paragraph 5 of the Notice of Motion dated 30 ^th March 2023) in his substantive application — to prohibit or restrain the Agency from determining the application which was made by GCHL to it on 2 ^nd June 2018 for a Waste Licence ( W0298-01) in respect of the former Ballinderry quarry. It is this relief which the Agency, in this application, is seeking to strike out or dismiss as being improperly constituted and devoid of any jurisdictional basis having regard to the provisions of section 160 of the 2000 Act and section 57 of the 1996 Act.

7 After receiving Mr. Malone's substantive application (commenced by originating Notice of Motion dated 30 ^th March 2023), the Agency's solicitors wrote to him inter alia stating its view that there was no jurisdiction in section 160 of the 2000 Act to restrain an administrative process – the Waste Licence application submitted by GCHL – which was pending before the Agency and which it was obliged to process in accordance with its statutory functions and obligations.

8 Consequent upon Mr. Malone's refusal to discontinue the relief sought as against the Agency, the Agency brought this application pursuant to a Notice of Motion dated 14 ^th July 2023.1

9 By its Notice of Motion in this application, the Agency seeks inter alia an order pursuant to the High Court's inherent jurisdiction and/or Order 19, rule 28 of the Rules of the Superior Courts 1986 (“RSC 1986”) striking out Paragraph 5 of the Notice of Motion dated 30 ^th March 2023 (the substantive application), contending that it is improperly constituted and/or is bound to fail because neither section 160 of the 2000 Act nor section 57 of the 1996 Act provide any jurisdictional basis to prohibit the Agency from processing and determining the Waste Licence application, W0298-01, (which was submitted by GCHL on 2 ^nd June 2018 in respect of the quarry at Ballinderry, Carbury, County Kildare) prior to GCHL submitting a remedial Environmental Impact Assessment Report (“rEIAR”) and remedial Natura Impact Statement (“rNIS”) to An Bord Pleanála and seeking substitute consent in accordance with section 177C of the 2000 Act, as contended for by Mr. Malone.

10 As mentioned earlier in this judgment, the application for the Waste Licence ( W0298-01) was made by GCHL to the Agency on 2 ^nd June 2018 and, at the time of the hearing of this application in March 2024, remained pending before the Agency.

11 Notwithstanding the complex legal issues raised by Mr. Malone in the substantive application, which will be addressed at a future hearing, it is this sole issue, i.e., whether Paragraph 5 of the Notice of Motion dated 30 ^th March 2023 should be struck out, which requires to be determined in this application.

12 David Browne SC appeared for the Agency. Damien Keaney BL appeared for GCHL (albeit on a watching brief capacity). Both expressly reserved their positions in relation to the remaining parts of the Notice of Motion dated 30 ^th March 2023. Mr. Malone is a litigant in person.

Notice of Motion dated 30th March 2023

13 Having summarised the reliefs sought in the Notice of Motion dated 30 ^th March 2023, i.e., the substantive application, the precise orders sought by Mr. Malone are as follows:

“ (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 Ref: PL09.205039;

(5) an order prohibiting the second named Respondent processing the waste licence application Ref: W0298-01 prior to the first named Respondent submitting a Remedial Environmental Impact Assessment Report and Remedial Natura 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] ;[ 23]

(6) Applicant costs;

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

14 The gravamen of Mr. Malone's complaint in the substantive application is that, as a matter of law, he contends that the Agency cannot process GCHL's application for a Waste Licence until such time as it (GCHL) has applied for and received a planning consent. As stated, that issue, however, is not for determination in this application. This application deals solely with whether the relief sought at Paragraph 5 is appropriate in an application pursuant to section 160 of the 2000 Act and section 57 of the 1996 Act.

SUMMARY OF THE POSITION ON BEHALF OF THE AGENCY

15 In summary, the Agency argues that the relief sought at Paragraph 5 of the Notice of Motion dated 30 ^th March 2023 (set out above) is procedurally irregular and constitutes a collateral challenge of the decision-making process which remains pending before the Agency. Mr. Browne SC submits that any decisions made by the Agency on the Waste...