Malone v GCHL Ltd and Ors [No. 4]

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 19 February 2026
• Neutral Citation: [2026] IEHC 118
• 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 (No. 4)

Second Named Notice Party

[2026] IEHC 118

Record No. 2023/94MCA

AN ARD-CHÚIRT

THE HIGH COURT

Preliminary application – Declaratory relief – Reference – Applicant seeking declaratory relief – Whether it would be appropriate to make a reference to the CJEU

Facts: The High Court (Bradley J), in the No. 1 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 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, to him seeking an order prohibiting or restraining the Agency from determining a Waste Licence application made to it by the first respondent, GCHL Ltd, for the restoration of the former Ballinderry quarry pit. In the No. 3 judgment ([2025] IEHC 397), Bradley J made the following orders: (i) that the Originating Notice of Motion dated 30 March 2023 (as amended by Court order arising from the No. 1 judgment) be further amended by the addition of a relief; (ii) 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 second notice party, Balyna Environmental Action Group, filed on 23 April 2025, form part of the application seeking the reliefs sought in the amended Notice of Motion dated 30 March 2023; (iii) refusing the reliefs sought in paras. 2, 3 and 7 of the ‘Amended Notice of Motion’ filed on 10 February 2025; and (iv) adjourning the consideration of the balance of the reliefs sought at paras. 4, 6 and 8 and the proposed questions seeking a preliminary reference 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. At the hearing on 5 November 2025, Mr Malone indicated that he wished the balance of the application to proceed.

Held by Bradley J that, having regard to the nature of the remedies (prescribed under s. 160 of the 2000 Act (and the similar effect of the provisions under s. 57 of the 1996 Act) and the principles set out by the High Court (Clarke J) in Hughes v Worldport Communications Inc [2005] IEHC 189, he should follow the decision and analysis of Holland J in Booth. Bradley J refused to include the declarations sought at paras. 4 and 6 or the order sought at para. 8 of the ‘Amended Notice of Motion’ filed on 10 February 2025 to the proceedings brought by Mr Malone in this application pursuant to s. 160 of the 2000 Act and s. 57 of the 1996 Act. Given the nature of these applications sought under the 2000 and 1996 Acts and the form of the remedies potentially available as against GCHL Ltd, Bradley J did not consider that it was appropriate to make a reference to the CJEU under Article 267 TFEU in relation to the questions proposed. He expressed no view on whether or not Mr Malone wished to pursue those issues against emanations of the State in other proceedings.

Bradley J gave directions as to the exchange of documentation.

Application refused.

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 19 th day of February 2026

INTRODUCTION

1 In Malone v GCHL Ltd & The EPA & Ors (No. 1) [2024] IEHC 336 (“ Malone (No. 1)”), I determined, in a preliminary application brought by the Environmental Protection Agency (“the Agency”), that there was no jurisdictional basis in an ‘enforcement action’ brought by Mr. Malone under 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”) to him seeking an order prohibiting or restraining the Agency from determining a Waste Licence application made to it by GCHL Ltd for the restoration of the former Ballinderry quarry pit.

2 In Malone v GCHL Ltd & The EPA & Ors (No. 3) [2025] IEHC 397 (“ Malone (No. 3)”), I made the following orders:

• (i) An order that the Originating Notice of Motion dated 30 ^th March 2023 (as amended by Court order arising from the judgment in Malone (No. 1)) 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. This report must include a comprehensive account of all removal activities, including the methodologies employed, evidence of compliance with EU environmental standards, and verification by certified contractors. The report shall be submitted to the Court and verified by an independent environmental expert to ensure compliance with the EIA Directive 2014/52 EU, the Habitats Directive (92/43/EEC), the Waste Framework Directive 2008/98/EC, as amended”;

• (ii) An order that the ‘Amended Affidavit’ of Mr. Malone sworn on 28 ^th January 2025, the ‘Legal Affidavit’ sworn on 22 ^nd April 2025, the exhibits and correspondence to those Affidavits (including, if the applicant so chooses, the written submissions furnished by the applicant at the hearing of the motion to amend) and the supporting Affidavit of Michelle Kane, Secretary of the Balyna Environmental Action Group, the second named Notice Party, (filed on 23 ^rd April 2025), form part of the application seeking the reliefs sought in the amended Notice of Motion dated 30 ^th March 2023;

• (iii) I refused the reliefs sought in paragraphs (2), (3) and (7) of the ‘Amended Notice of Motion’ filed on 10 ^th February 2025;

• (iv) I adjourned the consideration of the balance of the reliefs sought at paras 4, 6 and 8 of the ‘Amended Notice of Motion’ filed on 10 ^th February 2025 and the proposed questions seeking a preliminary reference 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 Limited & Ors [2025] IEHC 345 (“ Booth”).

3 Mr. Malone is the first named applicant in Booth also.

4 When the matter resumed at the hearing on 5 ^th November 2025, Mr. Malone indicated that he wished the balance of the application to proceed.

5 At the hearing on 5 ^th November 2025, I heard from Ms. Michelle Kane of the Balyna Environmental Action Group, from Mr. Malone, from counsel on behalf of GCHL Limited and counsel on behalf of Kildare County Council.

6 Whilst the balance of the application was intended to address the reliefs at paras 4, 6 and 8 of the ‘Amended Notice of Motion’ filed on 10 ^th February 2025, the submissions of Ms. Kane and Mr. Malone also addressed matters which are more appropriate for the substantive hearing.

7 I shall, therefore, direct that the matters raised by Ms. Kane (in her written submissions) and Mr. Malone (in his Affidavit sworn and filed on 20 ^th October 2025) be included and form part of the substantive application.

8 As just mentioned, in Malone (No. 3), I had left over what might be described as the ‘EU issues’ sought to be raised by Mr. Malone as they seemed to be very similar to the issues addressed by Holland J. in Booth.

CJEU case-law

9 For example, the proposed ‘Amended Notice of Motion’ filed on 10 ^th February 2025 by Mr. Malone, in the case before me, sought the following relief at para. 4:

“ 4) A Declaration that the Respondents have acted in contravention of Article 19(1) of the TEU, Article 47 of the Charter, Article 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. This failure constitutes a breach of the legislative obligations arising from measures transposed into Irish law under s.3 of the European Communities Act 1972, which gave 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.”

10 In Booth, the Applicants sought the following declaration at para. 5 of the originating Notice of Motion in that case:

“ 5) A declaration that the Respondents have acted in contravention of Article 19(1) of the TEU and Article 191 of the TFEU by failing to implement the judgments of the CJEU 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.”

Alleged failure to implement Directives

11 The proposed ‘Amended Notice of Motion’ filed on 10 ^th February 2025 by Mr. Malone, in the case before me, sought the following declaration at para. 6:

“ 6) A declaration that the Respondents have 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. These obligations arise under Article 288 of the TFEU, Articles 4(3), 17, 19(1) of the TEU, and Article 29.4.6? of the Irish Constitution, reflecting their direct incorporation into the Irish legal framework and their supremacy within the European Union legal order.”

12 In Booth, the Applicants sought the following reliefs at para. 4 of the originating Notice of Motion in that case:

“ 4) A declaration that the Respondents have failed to implement the EIA Directive,...