Malone v GCHL Ltd and Others [No.3]

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 09 July 2025
• Neutral Citation: [2025] IEHC 397
• 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 (No. 3)

[2025] IEHC 397

Record No. 2023/94MCA

AN ARD-CHÚIRT

THE HIGH COURT

Leave to apply – Amendment of pleadings – Joinder – Applicant seeking leave to apply for an order pursuant to O. 28, r. 1 RSC – Whether the applicant should be granted leave to amend the pleadings in the substantive application

Facts: The applicant, Mr Malone, in an ‘Amended Notice of Motion’ filed in the High Court on 10 February 2025, sought leave to apply for the following orders: (1) an order pursuant to O. 28, r. 1 RSC granting him leave to amend the pleadings in the substantive application; (2) an order joining the Attorney General as a notice party to the proceedings; (3) an order, pursuant to O. 40, r. 1 RSC, directing the first, second and third respondents to file replying affidavits within 21 days; (4) a declaration that the respondents had acted in contravention of Art. 19(1) of the TEU, Art. 47 of the Charter and Art. 191 of the TFEU by failing to comply with binding judgments of the CJEU in cases C-50/09, C-215/06, C-494/01; (5) an order directing the third respondent to prepare and submit, within one month, a report for restoration of the Ballinderry site to its original state, before the unauthorised developments; (6) a declaration that the respondents had failed to implement the EIA Directive, Public Participation Directive, Habitats Directive, and Waste Framework, in clear and unequivocal breach of their binding obligations under EU law; (7) an order directing the second respondent to decide on the Waste Licence Application W0298-01 within one month; and (8) an order in compliance with Art. 133 of the Rules of Procedure of the CJEU that the respondents, and any persons or entities acting on their behalf, pay damages to the applicant.

Held by Bradley J that he would make: (i) an order that the originating notice of motion dated 30 March 2023 (as amended by Court order arising from the judgment Malone v GCHL Ltd & The EPA & Ors (No. 1) [2024] IEHC 336) be further amended by the addition of the following relief - “(5) An Order directing GCHL Limited to prepare and submit, within one month, a report for restoration of the Ballinderry site to its original state, before the unauthorised developments”; and (ii) an order that the ‘Amended Affidavit’ of Mr Malone sworn on 28 January 2025, the ‘Legal Affidavit’ sworn on 22 April 2025, the exhibits and correspondence to those affidavits and the supporting affidavit of Ms Kane, Secretary of the Balyna Environmental Action Group, the second notice party (filed on 23 April 2025), form part of the application seeking the reliefs sought in the amended notice of motion dated 30 March 2023.

Bradley J refused the reliefs sought at paras. (2), (3) and (7) of the ‘Amended Notice of Motion’ filed on 10 February 2025 and adjourned the application for, and the consideration of, the balance of the reliefs sought at paragraphs (4), (6) and (8) of the ‘Amended Notice of Motion’ filed on 10 February 2025 and the four proposed questions seeking a preliminary reference in the document entitled ‘Oral submission for Case 2023-94 MCA’, to allow the parties to consider the judgment of the High Court (Holland J) in Malone & McEvoy v Laois County Council, An Bord Pleanála and Booth Recast Concrete Ltd & Ors [2025] IEHC 345.

Application adjourned.

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 9 ^th day of July 2025

CONTENTS

INTRODUCTION	2
Preliminary	2
ORIGINATING NOTICE OF MOTION	3
Notice of Motion (after first judgment)	3
AMENDED NOTICE OF MOTION	4
DISCUSSION & DECISION	6
Restoration Report	7
Directions	10
The position of the EPA	10
Application to join the Attorney General as a notice party	11
CONCLUSION	14
PROPOSED ORDER	14

INTRODUCTION

Preliminary

1 Mr. Malone is a litigant in person who is supported by the second named Notice Party (“BEAG”), in proceedings which he has brought seeking reliefs 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”) in relation to the former Ballinderry quarry pit operated by the Respondent, GCHL Ltd (“GCHL”).

2 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, which 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.

3 My understanding is that this application ( W0298-01) remains pending before the Agency.

4 In Malone v GCHL Ltd & The EPA & Ors (No.1) [2024] IEHC 336, I determined inter alia in a preliminary application brought by the Agency that there was no jurisdictional basis in an ‘enforcement action’ brought by Mr. Malone under section 160 of the 2000 Act and section 57 of the 1996 Act to him seeking an order prohibiting or restraining the Agency from determining the Waste Licence application made to it by GCHL Ltd for the restoration of the quarry pit.

5 In that judgment, I disallowed the following relief which had been initially sought at paragraph (5) of the Notice of Motion dated 30 ^th March 2023:

“ 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]”).

6 As this has relevance to one of the orders now sought by Mr. Malone in the application before me at paragraph 7 of the “Amended Notice of Motion” filed on 10 ^th February 2025, I had previously held that the seeking of an order of prohibition restraining the Agency from processing the waste licence application was effectively a ‘judicial review’ type remedy and that it was not a relief which was appropriate for a statutory enforcement application under the planning and waste management codes, having regard in particular to section 160 of the 2000 Act and sections 43(5) and 57 of the 1996 Act.

7 As in that judgment, I express no view on the merits of that relief.

ORIGINATING NOTICE OF MOTION

Notice of Motion (after first judgment)

8 Consequent upon the decision in Malone v GCHL Ltd & The EPA & Ors (No.1), the reliefs which are now set out in the Originating Notice of Motion (dated 30 ^th March 2023”) 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) [struck out (by order of the court)]

(6) Applicant costs;

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

9 Against that background and context, eight reliefs are now sought in the document entitled the ‘Amended Notice of Motion’ filed on 10 ^th February 2025 and the related matters addressed in the ‘Amended Affidavit’ of Mr. Malone sworn on 28 ^th January 2025, the ‘Legal Affidavit’ sworn on 22 ^nd April 2025 together with exhibits and correspondence, the supporting Affidavit of Michelle Kane, Secretary of the Balyna Environmental Action Group (BEAG), the second named Notice Party, which was filed on 23 ^rd April 2025. Mr. Malone has also furnished a letter and written submissions which summarise his application.

AMENDED NOTICE OF MOTION

10 In the ‘Amended Notice of Motion’ filed in the High Court on 10 ^th February 2025, Mr. Malone seeks leave to apply for the following orders:

“ (1) An Order pursuant to Order 28, Rule 1 of the Rules of the Superior Courts [1986] granting the Applicant leave to amend the pleadings in the substantive application, including amendments to the relief sought.

(2) An Order joining the Attorney General as a Notice Party to these proceedings, given the constitutional and EU law implications of the case, particularly regarding the Respondents' violation of Article 29.4.6 of the Irish Constitution concerning Ireland's obligations under EU law. The application of Article 19(1) of the Treaty on European Union (TEU) and Article 47 of the Charter of Fundamental Rights of the European Union in ensuring effective judicial protection.

(3) An Order, pursuant to Order 40, Rule 1 of the Rules of the...