High Court disallows striking out EU environmental law claims under Order 19 Rule 28 to ensure effective judicial protection.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

THE HIGH COURT PLANNING & ENVIRONMENT 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

Contents

JUDGMENT OF MR JUSTICE DAVID HOLLAND DELIVERED 23 June 2025 ............................................................ 3

INTRODUCTION ................................................................................................................................................... 3

ORIGINATING NOTICE OF MOTION 14/1/25 ....................................................................................................... 4

NOTICES OF MOTION TO DISMISS/STRIKE OUT & MALONE/MCEVOY COUNTER-MOTION ............................... 5

REGULATORY HISTORY OF SITE ........................................................................................................................... 6

Permission PL95/300 ....................................................................................................................................... 6

Permission PL98/780 ....................................................................................................................................... 8

Quarry Registration ......................................................................................................................................... 8

McEvoy S.160 Proceedings – 2005 to 2009..................................................................................................... 9

Permissions – 2006 - 2011 ............................................................................................................................... 9

Waste Disposal Investigation - 2012 ............................................................................................................... 9

S.261A Determination - July 2012 ................................................................................................................. 10

Permissions 2022 - 2024................................................................................................................................ 11

Complaints to the EU Commission ................................................................................................................ 11

APPLICANTS, THEIR INITIAL EVIDENCE & THEIR SUBMISSIONS ........................................................................ 12

Mr Malone - “Eurolaw Environmental Consultant” ...................................................................................... 12

Quotation in Submissions .......................................................................................................................... 15

Mr McEvoy..................................................................................................................................................... 16

2009 Compromise ......................................................................................................................................... 16

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

Malone Affidavit, 7 January 2025 – Factual Content .................................................................................... 16

McEvoy Affidavit, 28 January 2025 – Factual Content .................................................................................. 17

Malone Affidavit, 7 January 2025 & McEvoy Affidavit, 28 January 2025 – Legal Submissions..................... 19

RESPONDENTS’ EVIDENCE ................................................................................................................................. 22

The Board and Laois CC ................................................................................................................................. 22

Booth ............................................................................................................................................................. 22

RESPONDENTS’ SUBMISSIONS .......................................................................................................................... 24

Submissions - Laois CC & The Board.............................................................................................................. 24

Submissions - Booth ...................................................................................................................................... 26

REPLYING EVIDENCE & SUBMISSIONS – MR MALONE & MR MCEVOY............................................................. 27

Affidavits ........................................................................................................................................................ 27

Submissions ................................................................................................................................................... 28

JURISDICTION TO DISMISS/STRIKE OUT ............................................................................................................ 29

O.19 r.28 RSC & Inherent Jurisdiction ........................................................................................................... 29

Frivolous or Vexatious ................................................................................................................................... 30

Keohane, Moylist & Scotchstone .................................................................................................................. 31

Gleeson, Cinnéide & McHugh – 2024 & 2025 ............................................................................................... 34

Mohan - 2025 & Prospect of Amendment .................................................................................................... 34

Henderson in Motions to Dismiss ................................................................................................................. 36

Motions to Dismiss in Summary Proceedings ............................................................................................... 37

S.160 PDA 2000 & s.50 PDA 2000 as relevant & Quarrying: Works or Use ...................................................... 37

S.160 – “Planning Injunctions” ...................................................................................................................... 37

S.160 – Scope, Respondents & Remedies ..................................................................................................... 39

Declaratory Jurisdiction in s.160?.............................................................................................................. 40

Invalidation of Decisions - S.50 PDA 2000 – Procedural Exclusivity & Time Limits ....................................... 42

S.160 – Time limits & Duration of Planning Permissions .............................................................................. 44

TEU, TFEU, CFREU, GENERAL PRINCIPLES OF EU LAW & JUDICAL REVIEW AS EFFECTIVE REMEDY ................. 46

Procedural Autonomy – Equivalence, effectiveness - Time Limits & Collateral Attack ................................ 47

Meadows - 2010 ........................................................................................................................................ 50

Narconon Trust - 2021 & Killross Properties - 2016 .................................................................................. 50

Krikke – 2022 & Four Districts - 2023 ........................................................................................................ 51

Effective remedy – One Only Required & Interpretive Obligation................................................................ 54

Remedial Obligation - Krikke & Corridonia.................................................................................................... 54

MALONE v GCHL - 2025 ................................................................................................................................. 56

McTigue Quarries - 2018 & Harte Peat – 2022 ......................................................................................... 58

REFERENCE TO CJEU .......................................................................................................................................... 59

CONCLUSIONS ................................................................................................................................................... 60

Absence of Explanation of Failure to Seek Judicial Review ........................................................................... 60

Permissions invalid as in breach of EU law? .................................................................................................. 60

Have Permissions PL95/300 and PL98/780 Expired? .................................................................................... 61

Concrete Plant ........................................................................................................................................... 61

Quarrying ................................................................................................................................................... 62

Office Block ................................................................................................................................................ 63

Other Unauthorised Development? .............................................................................................................. 64

Waste Activities on Site? ............................................................................................................................... 64

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

Evidential Position – A Note .......................................................................................................................... 65

Positions of Board & Laois CC ........................................................................................................................ 65

Damages/Compensation ............................................................................................................................... 66

Enforcement of the 2009 Compromise ......................................................................................................... 67

Jurisdiction & Orders ..................................................................................................................................... 67

Appendix – Questions Proposed by Mr Malone for Preliminary Reference under Article 267 TFEU ............... 69

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 3rd 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.

1 Planning and Development Act 2000 as amended.

2 Sand and gravel pits are quarries for planning purposes.

Environmental Impact Assessment.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

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 sixmonth 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 178 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 TEU10 and Article 191 of the TFEU11 by failing to implement the judgments of the CJEU12 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'

4 Treaty on European Union.

5 Sic – the reference is clearly to the Waste Framework Directive.

6 Article 288 TFEU provides, inter alia, that “A directive shall be binding, as to the result to be achieved, upon each Member State to which it is

addressed, but shall leave to the national authorities the choice of form and methods.”

7 Set out below, Article 4.3 TEU provides for the EU Law principle of sincere co-operation.

8 The relevance of Article 17 TEU is not readily apparent. It provides for the constitution, role and powers of the EU Commission.

9 Article 29.4.6 of the Irish Constitution provides, inter alia, that “No provision of this constitution invalidates laws enacted, acts done or measures

adopted by the state, before, on or after the entry into force of the treaty of Lisbon, that are necessitated by the obligations of membership of the

European Union … or prevents laws enacted, acts done or measures adopted by … the European Union … or institutions thereof, … or bodies

competent under the treaties referred to in this section, from having the force of law in the state.

10 Set out below.

11 Set out below. It requires that Member States provide effective judicial remedies for breaches of EU law.

Court of Justice of the European Union.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

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 RSC14 and/or the inherent jurisdiction of the Court, an order striking out the proceedings as against it, as disclosing no reasonable cause of action, being frivolous and vexatious and/or as bound to fail. However, in argument, Laois CC confined itself to reliance on the inherent jurisdiction.15

13 Waste Management Act 1996. S.57 reads, in part: “Where, on application by any person to the High Court, that Court is satisfied that waste is being

held, recovered or disposed of in a manner that causes or is likely to cause environmental pollution or section 34 or 39(1) to be contravened], it may by

order—

(a) require the person holding, recovering or disposing of such waste to carry out specified measures to prevent or limit, or prevent a recurrence of,

such pollution F279[or contravention], within a specified period, (b) require the person holding, recovering or disposing of such waste to do, refrain

from or cease doing any specified act, or to refrain from or cease making any specified omission,

(c) make such other provision, including provision in relation to the payment of costs, including costs incurred by the Agency in relation to the carrying

out of relevant inspections or surveys and the taking of relevant samples and the analysis of the results of any such activities,] as the Court considers

appropriate.

(2) An application for an order under this section shall be by motion …”.

14 Order 19 rule 28 of the Rules of Superior Courts 1986 as amended with effect from 22 September 2023 by the Rules of the Superior Courts (Order

19) 2023 (SI No. 456 of 2023)

Written Submissions 13 May 2025 §6.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

9. By Notice of Motion dated 24 March 2025, the Board seeks, pursuant to the inherent jurisdiction of the Court, the dismissal and/or striking out of the claims for the reliefs sought at §§4, 5 and 6 of the ONoM against it, as bound to fail, frivolous and vexatious, an abuse of process and as lacking a jurisdictional basis in s.160 PDA 2000 and so being improperly constituted.

10. By Notice of Motion dated 15 April 2025, Booth seeks, pursuant to O.19 r.28 RSC and/or the inherent jurisdiction of the Court, an order striking out or dismissing the proceedings as against it as not disclosing any reasonable cause of action, frivolous or vexatious, improperly constituted and/or bound to fail.

11. By Notice of Motion dated 7 May 2025, Mr Malone and Mr McEvoy, seek orders refusing the Respondents’ motions on the grounds that the proceedings are not frivolous, vexatious, or an abuse of process. They also seek declarations:

• That Article 19(1) TEU and Article 47 CFREU16 bind the court to “to undertake a preliminary legal assessment of whether the issues raised in the Applicants’ pleadings are arguable, relevant, and within the scope of Union law, before applying any national procedural rule with the effect of limiting access to justice”;

• That procedural dismissal of proceedings raising EU law environmental rights, “without legal assessment of their substance, would breach the principles of effective judicial protection, the supremacy of Union law, and Articles 9(3) and 9(4) of the Aarhus Convention”.17

12. In addition, Malone and Mr McEvoy seek the referral of certain questions18 to the CJEU.

REGULATORY HISTORY OF SITE

PERMISSION PL95/300

13. In 1996, Laois CC issued permission PL95/300 to Mr Phil Butler for development described as “Retain concrete plant, extraction of sand and gravel and washing facility”. It bears the following “Note”:

16 Charter of Fundamental Rights of the European Union.

17 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus,

Denmark, on 25 June 1998. Article 9 reads, in part:

3. … each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative

or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating

to the environment.

4. … the procedures … shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not

prohibitively expensive. Decisions under this

article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.

A list of four proposed questions are exhibited to Mr Malone’s affidavit of 7 May 2025.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

“Note The permission herein granted shall, on the expiration of the period of 5 years beginning on the date of the granting of permission, cease to have effect as regards:

(1) In case the development to which the permission relates is not commenced during the period, the entire development and

(2) In case such development is so commenced, so much thereof as is not completed within that period.”

14. Mr Malone and Mr McEvoy say this “Note”:

• “reflects the standard statutory provision for permission expiry” (i.e. s.2 of the 1982 Act19 - the predecessor of s.40 PDA 2000. Both provide for a default expiry of planning permissions after 5 years);

and

• as reflecting that statutory position and/or by its own terms on the face of the permission, effects the expiry of the permission in 2001 such that operations since then on foot of the permission are unauthorised development.

15. Booth agrees that the “Note” reflects the default expiry of planning permissions after 5 years. But it asserts that the “Note” is merely a standard informative note appended to many, perhaps all, Laois CC permissions at that time and is not curial and that the permission must be interpreted in accordance with the planning application documents. In particular:

• Condition 1 of the permission required development in accordance with the plans and particulars submitted.

• The EIS20 submitted with the planning application explicitly envisaged a 30-year permission. It states that the “life expectancy of the operation is approximately 30 years”21 and identifies a phased working plan of stripping about 1 hectare at a time and restoration of about 2 hectares “at appropriate intervals”.22

16. Browne confirms the relevance of an EIS/EIAR to the interpretation of a planning permission23 and authority favours common-sense, contextual, purposive and pragmatic interpretation of planning permissions as if by an intelligent, informed layperson – e.g. XJS,24 Camiveo,25 Guessford26 and Glassco.27 To this one may respond that s.3 of the 1982 Act required that the Planning Authority “specify” any duration of a planning permission other than 5 years – as does the equivalent s.41 PDA 2000 and that invariably one finds such specification explicitly on the face of the permission.

19 Local Government (Planning and Development) Act 1982.

20 Environmental Impact Statement, these were the predecessor of EIARs – Environmental Impact Assessment Reports. They were directed at

compliance with the EIA Directive.

21 §2.4.

22 §2.7.

Simons on Planning law, 3rd Edition (Browne) §5-93 et seq.

24 In Re XJS Investments Ltd [1986] IR 750.

25 Camiveo Ltd v Dunnes Stores [2019] IECA 138.

26 Dunne v Guessford Ltd [2022] IECA 223.

Glassco Recycling Ltd v An Bord Pleanala [2023] IEHC 293.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

17. The EIS submitted with the planning application which resulted in permission PL95/300 is potentially significant in the following respects:

• Its Non-Technical Summary describes the planning application as “for the retention of a 2.0 approx.

hectare and the extension of 4.70 approx. hectare gravel pit.” In other words, and despite the terms of the permission, it permitted not merely retention, but substantial extension, of the Quarry more than trebling its potential size.

• Mr Malone and Mr McEvoy say the EIS was deficient as to its content and any EIA reliant thereon was defective such that permission PL95/300 is invalid as in breach of EIA law.

• As already observed, the EIS may be relevant to the interpretation of the duration of the permission.

PERMISSION PL98/780

18. Laois CC granted permission PL98/780, on 18 August 1999, to Booth for the erection of an office building ancillary to existing concrete works. It bore a similar “Note” and, on a similar basis, Mr Malone and Mr McEvoy say that since its expiry in 2003 the building is unauthorised. At least as to this rationale, they are clearly wrong as the planning status of the use of a permitted structure for the purpose for which it was erected is unaffected by the expiry of the permission for its erection. That is because continued use of a permitted structure, not being change of use, is not development within the meaning of the planning code.

19. However, Condition 11 of Permission PL98/780 provides that “The building shall be removed when quarrying operations cease”. This could arguably be viewed as odd given the building was permitted as ancillary to the concrete works, not to the quarrying. Equally, that could be described as a view unrealistically distinguishing the quarrying from the concrete works in a single enterprise consisting of both. However, these speculations are ultimately irrelevant as Condition 11 is perfectly clear in its terms and is long-beyond challenge.

QUARRY REGISTRATION

20. At some point after s.261 PDA 2000 came into effect, the Site was registered by Laois CC as quarry QY88. I am unaware of the details registered (which are determined by the quarry owner - Grall28) or of the conditions imposed thereby on quarry operations.

Grall v Meath County Council [2024] IEHC 552

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

MCEVOY S.160 PROCEEDINGS – 2005 TO 2009

21. In December 2005, Mr McEvoy commenced s.160 proceedings29 against Booth and Ms Butler seeking to injunct operations on the Site. In December 2009, they were compromised on terms scheduled to and incorporated in a High Court Order and made a rule of court. The terms envisaged that the action be struck out but the perfected order does not so record.30 Inter alia,31 Booth were to seek planning permission within 6 months for any unauthorised structures on the Site. Mr McEvoy had liberty to apply “solely in respect of same” - but without prejudice to the Booths’ contentions as to such structures that (a) Mr McEvoy had no genuine interest in them, (b) they were covered by the existing planning permission and (c) they were not amenable to enforcement. Mr McEvoy alleges that the Booths failed to comply with those terms. The Booths dispute that allegation – pointing to the later permissions as the result of such compliance. While these issues are relevant as narrative background, ultimately it does not appear to me that anything formal turns on them for the purpose of the proceedings.

PERMISSIONS – 2006 - 2011

22. Laois CC decided on 14 July 2006 to grant permission PL06/24 for retention of an existing industrial unit - office, toilets, septic tank, hard standing, and car parking. That decision was appealed, inter alia by Mr McEvoy, and the Board granted permission ABP PL11.218941 on 21st December 2007. Notably, Mr Malone assisted Mr McEvoy in his opposition to this planning application.

23. Laois CC decided on 3 June 2011 to grant three retention permissions. Mr McEvoy appealed all three decisions and all permissions were granted by the Board on 2nd November 2011 as follows:

• Laois CC PL10/288, for a precast concrete product manufacturing building - ABP PL 11.239206;

• Laois CC PL10/289, for a maintenance garage building - ABP PL 11.239205;

• Laois CC PL10/290, for another precast concrete manufacturing building - ABP PL11.239204 Again, Mr Malone assisted Mr McEvoy in his opposition to these planning applications.

WASTE DISPOSAL INVESTIGATION - 2012

24. Allegations by Mr McEvoy of unauthorised asbestos waste disposal on Site were investigated by Laois CC for the EPA, including by site visit. By letter of March 2012, Laois CC told him:

“No waste issues were noted on site. Laois County Council is satisfied that there is no unauthorised waste disposal on this site and this file is now closed.”

29 McEvoy v Booth & Others 2005 95 MCA.

30 I merely record this fact without attributing significance to it.

By undertakings, they regulated HGV traffic, road cleaning and hours of operation.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

S.261A DETERMINATION - JULY 2012

25. As part of the State’s complex response to Case C-215/06,32 in which the system of retention planning permissions for EIA projects was in effect invalidated, and as inserted by the PDAA 2010,33 s.261A PDA 2000 addressed the EIA and Habitats Directive status of quarries. The process is described in Grall. S.261A can be described as having required all planning authorities to, inter alia, examine within a time limit every quarry in their administrative areas and decide whether its legal position was deficient by reference to EIA, or AA34 law - whether it should have been but was not subjected to EIA or AA or screening. The consequences varied depending on the conclusion reached. In some circumstances it resulted in an application to the Board for Substitute Consent35 - a process aimed at remedying any identified deficiency. In others, it resulted in an enforcement notice requiring cessation of quarrying. In yet others the quarry was given a clean bill of legal health and no further action was required. Relevantly, s.261A provided for public participation in the process, including access to review by the Board of the decision of the planning authority. Also, decisions made pursuant to s.261A fall within s.50(2)(a) PDA 2000 such that their validity may be questioned only by application for judicial review under O.84 RSC.

26. Laois CC examined the Quarry for s.261A purposes and its resultant planners’ report dated 9 July 2012 reviewed its planning history.36 The Applicants exhibit and criticise that report.37 The report:

• observed that s.261A “relates to the Planning Authority examining and determining if the subject quarry should have carried out an EIS or AA in the past but did not …”;

• identified Permission 95/300 and the EIS submitted with it as the most important event relevant to s.261A;

• noted that Permission 95/300 preceded the coming into force of the Habitats Directive in 2007;

• recommended that Laois CC decide, as to the Quarry, that the EIA Directive had been complied with and that, as to the Habitats Directive, s.261A did not apply.

27. On foot of that report and by s.261A Determination dated 24 July 2024,38 Laois CC decided that no further action be taken pursuant to s.261A(2)(a) PDA 2000 in respect of the Quarry. Thereby it purposed to determine, in law and pursuant to statute, the status of the Quarry as to compliance with the EIA Directive and the Habitats Directive.

28. Some observations are useful at this point.

• As stated, the Applicants exhibited and criticised the planner’s s.261A report dated 9 July 2012.

• But neither they nor the Respondents swore to the content of, exhibited or criticised the s.261A Determination dated 24 July 2024.

32 Commission v Ireland (C-215/06) [2008] ECR I-04911.

33 Planning and Development (Amendment) Act 2010.

34 Appropriate Assessment within the meaning of the Habitats Directive.

See s.177K PDA 2000.

36 Including some history not recited here.

37 Mr Malone’s Affidavit sworn 7 January 2025, exhibit DM, Tab 10 and Mr McEvoy’s replying affidavit sworn 23 April 2025, Exhibit TM, Tab 3. Mr

McEvoy erroneously dates the report 21 March 2012, which was the date of the site inspection. The report refers to appendices not exhibited.

Manager’s order 372/2012.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

• At the hearing of the motions I directed the exhibition of that Determination after that hearing – which was done by Laois CC.

• It has not been suggested by anyone that the validity of that s.261A Determination was questioned, much less quashed, on judicial review. Nor is it impugned in these proceedings.

• In anticipation of the exhibition of that s.261A Determination, I gave the Applicants liberty to file written submissions. Despite reminders, they have not done so.

PERMISSIONS 2022 - 2024

29. Laois CC granted permission PL22/253 on 4 October 2022 for retention of a mounted crane and alterations to an adjoining shed previously granted retention permission ABP PL 11.239206. Yet again, Mr Malone assisted Mr McEvoy in his opposition to this planning application.

30. Laois CC decided on 14 February 2023 to grant permission PL22/751 for retention of four staff welfare containers, three steel storage containers with canopies, one mechanics storage container, a lean-to shed for storage, and all associated site works. Mr McEvoy appealed and the Board granted permission ABP- 315944-23 on 12 September 2024, determining also that the proposed development was not an EIA project.39 Mr Malone assisted Mr McEvoy in his opposition to this planning application also.

COMPLAINTS TO THE EU COMMISSION

31. Mr Malone and Mr McEvoy make averments and exhibit documents relevant to complaints they have made to the European Commission and the European Parliament. Mr Malone refers to his interactions with the Aarhus Convention Compliance Committee. In saying that I don’t find these matters relevant to the proceedings or to determination of the motions before me, I mean no disrespect to the Commission, the Parliament, the Committee or their processes – or to the Applicants. Inasmuch as Mr Malone relies on these institutions’ processes as demonstrating that his present complaints are not frivolous or vexatious, I consider that much of the content relates to other sites but, perhaps more importantly, it is irrelevant to the legal and technical, as opposed to the colloquial, meaning of the words frivolous and vexatious. I consider this issue further below.

39 I should add that an affidavit sworn for Laois CC also exhibits its decision of 19 December 20244 to grant Booth a 10-year permission PL 23/60390 for

sand and gravel extraction, which is under appeal by Mr McEvoy to the Board. However it was clarified at the hearing that this relates to a different

quarry and is irrelevant for present purposes.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

APPLICANTS, THEIR INITIAL EVIDENCE & THEIR SUBMISSIONS

MR MALONE - “EUROLAW ENVIRONMENTAL CONSULTANT”

32. Mr Malone is a self-professed “professional” having a “career” as a “Eurolaw Environmental Consultant” “with over thirty-five years of professional experience in the interpretation, implementation, and enforcement of European Union environmental law.” He cites his “longstanding professional engagement with EU environmental law”. However, he holds no relevant qualification and is not, as far as he has revealed, a member of any recognised profession. He does have a history of environmental activism – pursuing his aims inter alia via complaints to the European Commission over many years. At times, he has assisted Mr McEvoy in making such complaints and he has also and long-since assisted Mr McEvoy in making planning objections. Though he called his asserted expertise in aid in his affidavits, and may very well have acquired real expertise by experience as opposed to qualifications, he accepted at the hearing that, as a party to the proceedings, he was not entitled to call any such expertise in aid in the proceedings as he lacks the independence necessary to expert testimony – see for example ETI and Murphy.40

33. Environmental expertise apart and as he invokes his “career” as a “professional” “Eurolaw Environmental Consultant”, it is necessary to say that Mr Malone may also not “act as a solicitor” in these proceedings - as that would be a criminal offence.41 The phrase “act as a solicitor” at least encompasses a representational role in litigation before the courts. A non-solicitor so acting in court would also be in contempt of court such that the court could react of its own motion. That does not, of course, disable Mr Malone from making legal submissions on his own behalf as applicant for relief. Nor does it disable Mr McEvoy from adopting those submissions – as he did.

34. I should add that while the statutory position in those jurisdictions is more complex, there is English

(Piper42) and Northern Irish (Drinan43) authority that the phrase “act as a solicitor” is limited to “the doing of

acts which only a solicitor may perform and/or the doing of acts by a person pretending or holding himself out to be a solicitor. Such acts are not to be confused with the doing of acts of a kind commonly done by solicitors, but which involve no representation that the actor is acting as such.” And “An unqualified person does not 'act as a solicitor' … merely by doing acts of a kind commonly done by solicitors.” The EWCA44 approved this view in Agassi #2,45 not least in view of the penal nature of the prohibition. But the court in Agassi #2 also noted that the interest of protecting the public had, in the Australian state of Victoria, informed a broader view of the same phrase. The court in Agassi #2 cited at some length the “comprehensive judgment” of Phillips J in the Supreme Court of Victoria in Cornall v Nagle.46 Phillips J would have applied the concept more broadly to the giving of legal advice for reward. Inter alia, he said: “If the public is to be adequately protected from those lacking relevant qualifications, then, in the context of a

40 Environmental Trust Ireland v An Bord Pleanála [2022] IEHC 540, §96 and Murphy v An Bord Pleanála & Cleary [2024] IEHC 59 §13.

41 Section 55(1) Solicitor’s Act 1954 - An unqualified person shall not act as a solicitor. The phrase persists in s.2(3) of the Legal Services Regulation Act

2015: “a person provides legal services as a solicitor where he or she acts as a solicitor, as that term is construed under the Solicitors Acts 1954 to

2011”.

Piper Double Glazing v DC Contract Co [1994] 1 All ER 177, [1994] 1 WLR 777.

43 Re Drinan [2012] NIQB 76.

44 Court of Appeal of England and Wales.

45 Agassi v Robinson (Inspector of Taxes) (Costs) [2005] EWCA Civ 1507, [2006] 1 WLR 2126.

[1995] 2 VR 188.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

regulated legal profession, the giving of legal advice professionally is, I think, to be regarded as exclusively the province of those properly trained in the law and having the necessary expertise.” Nonetheless, even Phillips J considered that there was no breach of the rule unless “the act was done in such circumstances as to lead to the reasonable inference that that person was a solicitor.” It seems to me that the use of the word “reasonable” likely invokes the objective appreciation of an onlooker rather than the subjective intention of the actor or the appreciation of the “client”. The EWCA in Agassi #2 considered that there “was much to be

said” for the view of Phillips J, which it considered to be broader than that taken in Piper – inter alia as “(t)he

hallmark of a solicitor is that he is professionally qualified to practise law, is subject to regulation by the Law Society and owes important duties to the court.” The EWCA also acknowledged that this is a “difficult area” and “There is no statutory (and so far as we are aware no other) definition of “acting as a solicitor”. It observed that “(s)pecialist accountants may well have far greater expertise in esoteric areas of tax law and practice than solicitors.” And in Agassi #2, the advisor in question was expert in tax law and a member of the Chartered Institute of Taxation.

35. In truth, there are many areas of life in which the law intrudes such that reputable advisors, even if not solicitors, in such areas must of necessity and in reality advise in at least partly legal terms. Far from exclusively but not unusually, such advice is given on a charitable or pro bono basis – including to those unable to afford professional legal services. More widely, the range of advisors runs from the highly reputable to the quack. And in the field of environmental law, policy and protection, the position of unincorporated NGOs is recognised as vital to public participation in administrative processes and their advocacy necessarily involves mobilising legal concepts - in effect speaking for their members – with or without professional legal assistance. Notably in Ireland, the Bar Counsel Direct Professional Access Scheme allows members of certain professions and other bodies, some of which are in practice advisors on legal matters, to instruct counsel directly in non-contentious matters.

36. There seems to be little Irish authority on what it means to “act as a solicitor” within the meaning of the prohibition. Herbert J in Cremin v Lynch47 held that an unqualified person attending counsel in court did not act as a solicitor within s.55. He noted that she “was not seeking to address the court, neither was she providing legal advice or conducting the litigation on her own behalf, nor was she instructing counsel. … she was not in any real sense providing ‘legal services’…48. She was present solely as an agent representing her supervising solicitor and the firm by which she was employed and in my judgment it was this firm which was providing the legal services.” But Herbert J, as he did not need to, did not consider the more general question. Nor am I aware that an Irish court has done so. And, as has been said, the EWCA in Agassi #2 ultimately applied the narrower view taken in Piper.

37. It seems to me that, whatever else may be said as to the breadth of the phrase “act as a solicitor”, on any view – including that taken in Piper – it encompasses the representation of litigants before a court. In

this regard, Irish law is clear – the general rule is that only solicitors and barristers have a right of audience

before the courts on behalf of others - Aqua Fresh Fish.49 This rule applies as between co-litigants – though

47 [2008] IEHC 161.

48 As defined by s.2 of the Solicitors (Amendment) Act 1994. See also, now, s.2 of the Legal Services Regulation Act 2015.

Allied Irish Bank v Aqua Fresh Fish Ltd [2018] IESC 49, [2019] 1 IR 517.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

that case suggests that the fact that a proposed lay representative is also a co-litigant may be relevant to the possibility of an making an exception to the rule. In practice and given that one litigant can often simply adopt the submissions of another, as occurred here, the point may not be crucial and a certain practical sense prevails in such circumstances. But, as the Supreme Court said in Aqua Fresh Fish, the court’s inherent discretion to allow representation by a non-lawyer, though important given constitutional guarantees of rights of access to the courts and fair procedures, arises in practice and as a matter of the interests of justice only exceptionally and the exceptions are not such as may undermine the general rule that only professional lawyers have rights of audience before the courts.

38. It should be said that Mr Malone and Mr McEvoy accepted without argument my ruling that the former could not represent the latter before me. However, given the terms in which Mr Malone invoked his legal expertise in his affidavit and couched it in terms of his “professional” “career” as a “Eurolaw … Consultant”, it seems to me proper to set out my understanding of the position in law in this regard – insofar as the present state of the law permits. It also seems prudent in light of those terms used by Mr Malone, to mention s.58 of the Solicitors Act 1954 which prohibits the drawing or preparing by an unqualified person of a document relating to any legal proceeding, save where not done either directly or indirectly for or in expectation of any fee, gain or reward.

39. However, and lest any contrary impression be formed, I should say that while in the circumstances disclosed on the papers it has seemed to me prudent to canvass the matters set out above:

• I have no knowledge of the nature of the relationship between Mr Malone and Mr McEvoy other than that they are co-litigants and that Mr Malone swears that:

“In my professional capacity as a Eurolaw Environmental Consultant, I have provided environmental and legal support in relation to the Ballymullen site for many years. I assisted the Second Applicant, Mr. Thomas McEvoy, in preparing detailed observations submitted to Laois County Council regarding planning applications PL 06/24, PL 10/288, PL 10/289, PL 10/290, PL 22/253, and PL 22/751, and in preparing formal appeals to An Bord Pleanála regarding some of those permissions.”

• Mr Malone similarly assisted Mr McEvoy in making multiple complaints about the Quarry and related matters to Laois CC, Kilkenny County Council, the EPA and the European Commission. So Mr Malone has been assisting Mr McEvoy in his opposition to the quarry since, at latest, in or about 2006.

• Mr Malone at all times presented himself and his case before me in a courteous, co-operative and dignified manner and abided the directions of the court as to the capacity in which he might do so and as to the admissibility of his evidence insofar as it drew on his professed expertise and/or judgment.

• None of the foregoing is intended to make any finding adverse to or favourable to Mr Malone or, for that matter, Mr McEvoy. Nor is it intended to impugn his bona fides. Nor do I find that Mr Malone acted as a solicitor in any manner deserving of criticism. Nor, more generally, are my observations intended to doubt the vital role of public participation in environmental protection.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

Quotation in Submissions

40. However, I should mention one other matter. Mr Malone’s written submissions,50 in their first iteration, supplied only on the trial date, clearly conveyed, by the use of quotation marks and italics, that a particular passage of text, designating national courts as “decentralised courts” of the EU, was to be found in §68 of Case C-416/10. As the submissions were supplied only at trial, no-one had opportunity to check the

quotation. On doing so after trial, I could not find it – either in Case C-416/10 or in any other case. On inquiry

of Mr Malone, by correspondence, as to where I might find the quoted passage, he replaced his submissions with a version in which the original quotation was replaced by what was in textual terms a quite different quotation (albeit to broadly similar effect) from a different case – Case C-234/17 (Celmer).51 On my further inquiry as to where he had got the first quotation, he replied by e-mail that it was:

“… not a direct quotation from a single source but a well-established concept reflected in multiple decisions of the … (CJEU) … the term ‘decentralised court’ is frequently used in EU legal commentary and academic literature to describe this functional role of national courts within the EU legal order.”

41. On receipt of this response, I asked Mr Malone to state who exactly generated the text in quotation marks as to “decentralised courts” in his original written submissions of 26 May 2025 and how exactly was it generated? Mr Malone did not reply. I refrain from inferring how it was generated.

42. It is necessary to be clear: it is not acceptable to depict text in written submissions as a verbatim quotation from an authority where it is not such. A similar action by a professional lawyer would be misconduct – see, for example, the recent and somewhat analogous case of Ayinde.52 The principle is essentially the same - though I hasten to say that I would not push the analogy too far as to a factual comparison of the present case with that case and the error in the present case is not of the order of the misconduct in that case. However, appreciable judicial time was wasted on the issue – not least trying to find the source of the quotation. And it does illustrate:

• The vital importance of precision and accuracy in written submissions. That duty lies on lay litigants as much as on lawyers.

• That text in submissions formatted so as to convey that it is a direct and verbatim quotation from an identified source must be exactly that. Of course, it is permissible to edit the text (for example to exclude irrelevant content or by underlining for emphasis) but, if so, that it has been done must be apparent on the face of the document.

• That opposing parties are entitled to written submissions in good time to check them.

43. All that said, in a substantive sense, the issue is not vital to this case. The underlying proposition for which Mr Malone contends – that domestic courts must implement EU law - is uncontroversial. Not least for that reason, and in light also of the manner in which Mr Malone generally presented his case at the hearing, I

50 Entitled “Oral submission for Hearing in Case 2025-17 MCA”.

51 Case C-234/17 Minister for Justice and Equality v LM (the “Celmer” case), Judgment of 25 July 2018, EU:C:2018:586.

R (Ayinde) v London Borough Council [2025] EWHC 1040 (Admin). A barrister’s submission cited 5 fake cases.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

am inclined to accept that there was no attempt or intention to mislead and accept also that Mr Malone has apologized for the error. It does not affect the outcome of the present motions.

MR MCEVOY

44. Mr McEvoy is a retired fitter and a resident local to the Site for over 30 years. As the history reveals, he is a long-time opponent of its operations. He considers that Booths operate it in various ways detrimental to the proper enjoyment of his home. Though Mr Malone cannot act as legal representative for Mr McEvoy in these proceedings, Mr McEvoy’s case is in substance the same as Mr Malone’s. As he was entitled to do, adopted Mr Malone’s submissions. For present purposes, Mr McEvoy is not an expert witness.

45. As to the evidence, much of it has been set out above in recounting the planning history of the Site. That is set out in the affidavits and I will try to minimise repetition thereof in what follows below.

2009 COMPROMISE

46. It is as well to dispose of one matter at this point. As has been seen, in 2005 Mr McEvoy started s.160 proceedings seeking to injunct operations on the Site. In 2009, he compromised them on terms. He alleges, and Booth disputes, that Booth failed to comply with those terms. He also alleges that those proceedings were “adjudicated in a manner that was reflective of judicial nationalism, where national law was prioritised over EU law”. The obvious and fundamental flaw in this assertion is that those proceedings were not adjudicated at all – they were compromised - and by Mr McEvoy himself. In any event, and also fundamentally, these present s.160 proceedings are not an action on that 2009 compromise – nor could they be. The dispute whether Booth fulfilled its part of that compromise could be relevant to the narrative underlying the present s.160 proceedings. But I do not see that its resolution bears on the planning status - authorised or unauthorised - of the Quarry (which status turns on the nature of any development on Site and the validity, currency and terms of the Permissions) or on the viability of the s.160 proceedings which I must decide in the motions before me.

MALONE AFFIDAVIT, 7 JANUARY 2025 – FACTUAL CONTENT

47. It must be said that Mr Malone’s affidavit is characterised by repetition, legal submissions and invocation of his own expertise. Much of its content is irrelevant. In that light, it is somewhat difficult to extract the essential admissible factual averments. However, and apart for the planning history, they seem to me to be as follows.

a. He cites “the eight unauthorised developments” – which I take to correspond to the eight planning permissions listed in the ONoM. (I refer to these collectively as “the Permissions”).

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

b. He refers to the Permissions as the “retention permissions”. That is true save, as has been seen, as to:

▪ part of permission PL95/300 which, despite its terms on its face, encompassed extension of the sand and gravel pit by 4.70 hectares;

▪ permission PL PL98/780 for the erection of an office building.

c. No EIAs or EIA Screenings were done as to any of the Permissions save permission PL95/300. No AAs or AA Screenings were done for any permission. This is common case.

d. There is no planning permission or waste licence for waste disposal on the Site. This is common case.

e. He says, “it estimated that over one million tonnes of waste was illegally disposed of at the Ballymullen site.”

▪ It is disputed that there has been any waste disposal on the Site.

▪ Mr Malone’s use of the passive tense – “It is estimated” - illustrates that the allegation, as far as his affidavit goes, is mere assertion for which he personally provides no evidence. While he later provides a calculation, no actual evidence is provided for the spectacular assertion of disposal of “over one million tonnes of waste”.

f. The Site lies in the river catchment of the River Nore Special Area of Conservation, which is designated as such at least in part for its Freshwater Pearl Mussel population.

MCEVOY AFFIDAVIT, 28 JANUARY 2025 – FACTUAL CONTENT

48. Mr McEvoy asserts, other than as to the planning history recounted above, that a. On 6 December 2005, Laois County Council served on Kathleen Butler a notice under s.55 WMA 1996 requiring that she cease unauthorised waste activities on the Site.

▪ Despite the specific date cited – and that almost 19 years ago - Mr McEvoy does not exhibit a copy of the s.55 notice. Neither does he state his source of knowledge of that notice. Nor does he identify the precise locus of the alleged waste activities – a matter of some importance given that Ms Butler sold most of the Quarry to Booth in 2005 but retained and operated about 12 acres of quarry on her own account. On the evidence proffered therefore, it is not possible to attribute any weight to this averment.

b. Mr McEvoy exhibits a copy of an affidavit sworn by a Mr Fitzpatrick in 2005 in the 2005 s.160 proceedings. It records that:

▪ Mr Fitzpatrick had been a truck driver for Booth and in 2003 witnessed other Booth drivers draw demolition waste from Booth property development sites in Carlow and Portlaoise to the Site, -

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

though he did not see what was done with it on the Site. He says that Booth workers said it was used to fill in a basin on which a “chimney shed”53 was later built.

▪ He believes, but is not sure, that this demolition waste contained asbestos.

▪ In April 2005, a Site inspection by Laois CC resulted in “flurry of activity” by Booth in which its Irish employees were sent home and Polish employees were set to burning large fires of “all kinds” of flammable materials, including plastic.

▪ He gives describes various alleged changes in the operations on Site over the years to 2005.

c. Mr McEvoy exhibits a set of 26 small-scale54 photographs – purportedly of the Site and apparently taken recently. Legends individual to each photo are not supplied. He describes them as showing:

▪ “clear and indisputable proof of non-compliance with planning conditions”, Article 4 WFD,55 the EIA Directive and the Habitats Directive;

▪ non-compliance with the s.55 notice served in 2005;

▪ significant unauthorised waste development/waste disposal on Site; and ▪ activities causing pollution.

d. As to unauthorised waste disposal activities, including activities relating to hazardous materials, Mr McEvoy states that the photographs show concrete blocks and other construction materials,56 tyres and cars,57 car engines,58 tyres and miscellaneous waste,59 asbestos,60 and bitumen.61 As to bitumen, he asserts deposition near and water source “posing significant risks to human health, ecosystems, and the environment”. He asserts that hundreds of bags of cement are improperly stored outdoors and causing contamination62 and that oil and/or chemicals are leaking from tanks unbunded in breach of Conditions 7 of PL06/24 and 4 of PL22/751.63

I observe that ▪ Mr McEvoy does not discriminate between hazardous and non-hazardous materials or state the basis for such categorisation as to any particular waste type;

▪ The references to Condition 7 of PL 06/24 and to Condition 4 of PL22/751 appear misconceived.

No such permissions were granted. The decisions to grant them were appealed to the Board (by Mr McEvoy himself) and resulted in, respectively, permission PL 11.2189411, Condition 7 of which does not relate to bunding tanks and permission ABP-315944-23, Condition 4 of which does not relate to bunding tanks. However Condition 5 does.

e. Mr McEvoy states that the photographs show “clear evidence of multiple sources of contaminated leachate across the site, being discharged directly into a network of drains.”

▪ While it is possible that certain photographs depict it, I cannot reliably discern any evidence of contaminated leachate discharging to drains from such small photographs.

53 This seems to be a shed used to make pre-cast concrete chimneys.

54 8 per page.

55 Waste Framework Directive.

56 Photos 1, 2, and 8.

57 Photo 5.

58 Photo 6.

Photo 4.

60 Photo 9.

61 Photos 3, 7, and 10.

62 Photo 10.

Photos 12 to 16.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

f. Mr McEvoy states that photographs 22 to 26 show five further unauthorised developments – which he does not describe. However the photos, at least in the cases of numbers 23, 24 and 25, clearly enough depict substantial shed-like structures. It is less clear what unauthorised developments are purportedly depicted in Photographs 22 and 26.

g. Mr McEvoy alleges deliveries to the Site from 5 identified and allegedly unauthorised quarries owned by listed third parties. As to one of them, he exhibits a copy enforcement notice under ss.154 and

155 PDA 2000 dated 29 February 2016 and served by Laois CC requiring cesser of unauthorised quarrying. More generally, he asserts breach by Laois CC of its planning law enforcement duties as set out in s.153 PDA 2000.

MALONE AFFIDAVIT, 7 JANUARY 2025 & MCEVOY AFFIDAVIT, 28 JANUARY 2025 – LEGAL SUBMISSIONS

49. Affidavits are not a proper place for legal submissions. But that rule is not, in practice, always strictly applied and some account of the legal position – or a parties’ view of the legal position - can assist in contextualising factual averments. It is impossible to do justice to the case Mr Malone and Mr McEvoy intend to make unless I have regard to their legal submissions as put on affidavit. Again correcting for much repetition, I think it can be fairly summarised as follows. I should add that I have also here, for convenience if out of sequence, reflected the content of certain legal submissions made in Mr Malone’s 2nd Affidavit, sworn

23 April 2025 and in his written submissions64 at the hearing.

a. Laois CC unlawfully granted the Permissions in breach of both EU and national law. The Board unlawfully upheld three of them. A core – arguably the core – element of the Applicants’ case is that the Permissions “are legally invalid under both EU and Irish Law.”

b. The 8-week time limit imposed by s.50(7) PDA 2000 for commencement of judicial review does not preclude enforcement under s.160 as CJEU caselaw65 holds that domestic time limits must not prevent effective judicial protection of EU law rights.

c. These are not judicial review proceedings but rather seek enforcement via s.160 PDA 2000 in accordance with “overarching obligations” of Article 19(1)TEU and Article 47 CFREU – both of which stipulate the availability in domestic courts, acting as “decentralised” EU courts, of remedies effective to vindicate EU law rights and obligations. Mr Malone and Mr McEvoy rely, in particular on Article 19(1) TEU, Article 47 CFREU and Article 9 Aarhus (all as to the obligation to provide effective remedy for breaches of EU and environmental law), Article 4(3) TEU (as to the Member States’ obligations of sincere cooperation with EU law and fulfilment of EU law obligations), the primacy of EU law over domestic laws, Article 191 TFEU (the aim of a high level of environmental protection and the polluter pays principle) the doctrine of direct effect of EU Law, and Article 29.4.6 Bunreacht.66 In particular

Entitled “Oral submission for Hearing in Case 2025-17 MCA”.

65 Citing Case C-201/02 (Wells) and Case C-406/14. I have been unable to discern the relevance of the latter case.

66 Inter alia - 6° No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, … necessitated by the

obligations of membership of the European Union … or prevents laws enacted, acts done or measures adopted by — the said European Union … from

having the force of law in the State.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

they cite “Celmer”,67 Fransson,68 and Meadows69 to the effect that Articles 4(3) and 19(1) TEU and Article 47 CFREU are binding and require effective judicial protection of individuals in the fields covered by EU law by national courts acting as decentralised EU courts. The also cite Marleasing70 for the principle that national law must be interpreted, so far as possible, consistently with the wording and purpose of a directive and the obligation to achieve the result prescribed by the directive.

d. S.160 PDA 2000 and s.57 WMA 1996 are “recognised enforcement mechanisms under Irish law for addressing unauthorised development and waste activities.”

o As stated earlier, the ONoM does not invoke s.57 WMA 1996 or seek relief pursuant thereto. The first mention of s.57 is in Mr Malone’s second affidavit sworn 23 April 2025.

e. The Permissions illustrate and are characterised by systemic and ongoing breaches of EU environmental laws by the State and all the Respondents: specifically, and despite various listed binding judgments of the CJEU,71 breach of the EIA Directive,72 the Habitats Directive,73 the Waste Framework Directive,74 the Water Framework Directive,75 and the Public Participation Directive.76 The Applicants also invoke the Aarhus Convention77 as to access to environmental justice, public participation in environmental decision-making, and access to environmental information.

f. Citing McTigue Quarries78 & Harte Peat,79 they assert that the Permissions are invalid as granted without prior environmental assessments required by EU law. Citing, in particular, Cases C-50/09 and C-215/06, they assert that the retention Permissions – not least those granted after judgment was given in July 2008 in proceedings C-215/06 - are invalid as impermissible retention permissions for EIA projects.

g. The Permissions are therefore legally invalid. The further implication seems to be that the developments effected in reliance on those invalid permissions are unauthorised within the meaning of s.160 PDA 2000.

▪ These are propositions vital to the Applicants’ case and, as will be seen, are misconceived.

Case C-234/17 Minister for Justice and Equality v LM, EU:C:2018:586, Judgment of 25 July 2018.

68 Case C-617/10 Aklagaren v Fransson [2013] 2 CMLR 46 (2013)

69 Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701.

70 Case C-106/89 Marleasing SA v La Comercial Internacional de Alimentación SA [1992] 1 CMLR 305.

71 The cases cited by Mr Malone include: cases C-392/96 Commission v Ireland [1999] 3 CMLR 727; C-494/01 Commission v Ireland [2005] 3 CMLR 14;

C-87/02 Commission v Italy [2005] Env LR 3; C-127/02 Waddenzee [2005] 2 CMLR 31; C-332/04 Commission v Spain, Judgment of 16 March 2006,

ECLI:EU:C:2006:180; C-66/06 Commission v Ireland [2008] Env LR D9; C-215/06 Commission v Ireland [2009] Env LR D3; C-427/07 Commission v Ireland

[2011] 3 CMLR 46; C-50/09 Commission v Ireland [2011] Env LR 25; C-240/09 Lesoochranárske Zoskupenie [2011] 2 CMLR 43 (“LZ”) ; C-258/11

Sweetman v An Bord Pleanála [2013] 3 CMLR 16; C-72/12 Gemeinde Altrip v Land Rheinland-Pfalz [2013] PTSR 311; C-290/15 D'Oultremont v Région

Wallonne, Judgment of 27 October 2016, ECLI:EU:C:2016:816; C-164/17 Grace & Sweetman v An Bord Pleanála [2018]; C-411/17 Inter-Environnement

Wallonie and Bond Beter Leefmilieu Vlaanderen v Conseil des Ministres [2020] Env LR 9.

72 Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, as amended. Directive 2011/92/EU

on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2014/52/EU.

73 Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora, OJ L 206, 22 July 1992, pp7–50.

74 Directive 2008/98/EC on waste.

75 Directive 2000/60/EC of establishing a framework for Community action in the field of water policy.

76 Directive 2003/35/EC providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment

and amending with regard to public participation and access to justice Directives 85/337/EEC and 96/61/EC.

77 UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, done at Aarhus

25 June 1998, 2161 UNTS 447.

78 An Taisce v McTigue Quarries Ltd [2018] IESC 54.

Harte Peat v Environmental Protection Agency [2022] IEHC 148.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

h. More specifically:

▪ The EIA in permission PL95/300 was deficient as to the content of the EIS.

▪ No EIA or EIA Screening or AA or AA Screening was done as to the Permissions other than EIA in permission PL95/300.

i. Laois CC failed to require Booth to apply, and Booth failed to apply to the Board, in respect of the developments effected in reliance on the Permissions, for substitute consent within the meaning of Part XA PDA 2000 which, the Applicants say, correctly, was Ireland’s response to the deficiencies, having regard to EIA law, in the retention planning permission system.

▪ I observe that here, in substance, the Applicants invoke the process under s.261A PDA 2000 which Laois CC completed in 2012 to a conclusion, in effect, that substitute consent was not required, which conclusion was not then or since challenged in judicial review.

j. As a separate matter, the developments permitted by permissions PL95/300 - “concrete plant, extraction of sand and gravel and washing facility”, and PL98/780 - “erection of an office building ancillary to existing concrete works” - are unauthorised within the meaning of s.160 PDA 2000 since the expiry of each of those permissions after five years from their grant, in respectively, 2001 and 2003.

k. Ongoing waste activities on-Site violate various listed provisions of the Waste Framework Directive and those activities are EIA projects within Annex II Category II (b)80 of the EIA Directive, such that permission for those activities required prior EIA or EIA screening.

l. As to allegedly unauthorised quarries supplying Booth at the Site and as has been noted above, the Applicants assert breach by Laois CC of its planning law enforcement duties as set out in s.153 PDA 2000.

50. Mr Malone at the hearing supplied written submissions81 of which his oral submission was a summary. Mr McEvoy adopted those submissions. After trial, Mr Malone replaced his written submissions with a version corrected as to the misquotation issue described above. It is to this latter version that I have had regard in preparing this judgment. As to the substantive bases for the s.160 proceedings, it essentially repeats and he essentially orally repeated, the legal submissions in effect made in the Applicants’ affidavits. In light of Cases C-494/01, C-215/06, and C-50/09, he also invoked Article 260 TFEU to the effect that

"If the Court of Justice of the European Union finds that a Member State has failed to fulfil an obligation under the Treaties, the State shall be required to take the necessary measures to comply with the judgment of the Court."

Mr Malone also, in response to the Respondents’ submissions, made submissions as to the jurisdiction to strike out and also proposed a reference to the CJEU - to both of which I refer later in this judgment.

80 11. OTHER PROJECTS (b) Installations for the disposal of waste (projects not included in Annex I).

Entitled “Oral submission for Hearing in Case 2025-17 MCA”.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

RESPONDENTS’ EVIDENCE

THE BOARD AND LAOIS CC

51. The affidavit82 of Evan O’Brien, solicitor, for the Board, exhibits all relevant planning permissions and largely prefigures the Board’s legal submissions. Inter alia, he asserts that:

• s.160 does not enable pursuit of the reliefs sought against the Board – being those set out at §§4, 5 and

6 of the ONoM.

• There is no evidence or basis for any assertion that the Board has, is, or is likely to carry out “unauthorised development” within the meaning of s.160.

• In that the s.160 proceedings question the validity of decisions of the Board on 21st December 2007 and 2nd November 2011 to grant permissions on appeal, they claim reliefs outside the scope of s.160, are a grossly out-of-time collateral challenge to those decisions and contravene s.50(2) PDA 2000.

• The proceedings against the Board are improperly constituted, jurisdictionally baseless, frivolous and vexatious, an abuse of process and bound to fail.

52. The affidavit83 of William Leahy, solicitor, for Laois CC, is to largely similar effect.84

BOOTH

53. The affidavit85 of Pat Booth addresses certain factual disputes but Booth’s counsel observed that Booth had not, given the limited extent to which the court will enter into factual disputes on motions to strike out or dismiss, attempted a full factual response to the grounding affidavits. I think Booth was entitled to take that course and to reserve their full position as to the facts to a circumstance in which the proceedings survive their motion.

54. Mr Booth puts the motion in what he is advised is its legal context in terms similar to those to which Mr O’Brien and Mr Leahy averred. Not least, he says the s.160 proceedings are:

• an impermissible collateral attack on the Permissions – against which no judicial review proceedings were launched and the time for seeking judicial review has long since passed; and

• an attempt to re-run Mr McEvoy’s 2005 proceedings settled in 2009.

55. Mr Booth also:

Sworn 24 March 2025.

83 Sworn 2 April 2025.

84 It refers to permission PL 23/60390, now under appeal PL11.321537 to the Board, as relating to the Site but it was accepted at trial that this was in

error.

Sworn 15 April 2025.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

• Disputes Mr Malone’s view that the earliest of the Permissions expired after 5 years as based on a misunderstanding of a generic ‘Note’ on the first page of those Permissions, not reflected in their planning conditions.

• Asserts that even if they had expired, the relevant developments would be immune from s.160 proceedings by reason of the expiry of the relevant 7-year period.

• Asserts that the more recent permissions record that the Quarry “has a pre-1964 established user.”

• Recounts the terms of the 2009 compromise of Mr McEvoy’s 2005 s.160 proceedings and asserts Booth’s compliance therewith in the form of the Permissions which post-date it.

• Asserts that none of the permitted structures required EIA.

• Asserts that there is no drainage to streams or rivers from the Site.

o I observe that this may be correct, but the 1996 EIS says that “The main source of drainage in the general area is the river Nore. Adjacent to the site is located a stream which traverses Mr. Butlers land, south of Ballymullen House” and “a stream adjoins the site and one of the prime concerns is to ensure that the activity on site causes no adverse effect on this stream, realising that it is a tributary of the River Nore.”86

• Asserts that only clean uncontaminated surface water is allowed to leave the Site. It is regularly tested in compliance with planning conditions and the results are sent to the Planning Authority. All trade effluent is recycled and reused on Site.

o I observe that it is not stated by what means or route surface water leaves the Site or where it goes thereafter.

• Asserts that there is no evidence of any risk to the River Nore Freshwater Pearl Mussels, which lie 10 km away.

o This seems to be a reference to the location of the nearest mussel beds. The Laois CC Planner’s s.261A report of 2012 refers to the River Barrow and Nore SAC as being about 1.7km from the Site.

56. As to the allegations of waste activities, Mr Booth says,

• No waste – and specifically no asbestos waste - was ever deposited on-Site and the Applicants offer no evidence of such deposit. The exhibited photographs do not constitute such evidence.

• As to those photographs:

o Booth runs a quarry and concrete products business. Their products are concrete blocks and other construction materials. Tarmacadam is kept for road maintenance on Site, not as the alleged bituminous waste.

o Tyres and engine parts are removed from lorries from time to time in a permitted on-Site garage.

Where possible they are repaired and reused in the business.

o Mr Booth does not know what Photo 9 depicts as it is illegible. But he sure it is not waste asbestos.

o There is no “water source” on Site, no discharge of trade effluent off-Site (it is recycled) and no evidence of contaminated leachate.

o There are no unauthorised developments on-Site.

• The site is constantly monitored environmentally and weekly reports go to Laois CC, which reports are publicly accessible.

§§3.2 and 4.5.1.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

• The exhibition of a copy of an affidavit sworn 20 years ago in other proceedings is worthless and is in any event equivocal in its terms.

• Mr McEvoy has known his allegations of waste disposal at Ballymullen, also raised in the 2005 proceedings, to be without merit since they were so “proven by the EPA87 and Laois County Council”.

Laois CC for the EPA investigated Mr McEvoy’s allegations of asbestos waste deposition – inter alia by site visits in 2011 and 2012, aided by maps and photographs Mr McEvoy provided to the EPA. An exhibited letter from Laois CC to Mr McEvoy dated 29 March 2012 headed “Alleged unauthorised waste disposal at Booth Concrete” states satisfaction “that there is no unauthorised waste disposal on this site and this file is now closed.”

RESPONDENTS’ SUBMISSIONS

57. All three of the Board, Laois CC and Booth made written and oral submissions in their respective motions. The positions of the Board and Laois CC essentially coincided and can be recounted together.

SUBMISSIONS - LAOIS CC & THE BOARD

58. Laois CC and the Board submit that:

a. As a general observation, the Applicants are re-running Mr Malone’s failed arguments made in Malone v GCHL88 - including those based on the Art. 19(1) TEU guarantee of effective national remedy for breach of EU Law. They should fail here also.

b. Malone v GCHL 89 is authority that the Court has inherent jurisdiction to determine a motion whether s.160 proceedings are improperly constituted as having no jurisdictional basis and/or are bound to fail and so are an abuse of process.

c. The s.160 proceedings against them are frivolous and vexatious and/or disclose no reasonable cause of action.

d. The reliefs sought against them in substance and impermissibly impugn the lawfulness of the Permissions.

e. Malone v GCHL 90 is authority that o S.160 can’t be used:

▪ for any purpose other than planning enforcement against unauthorised development; or ▪ to impugn the lawfulness of a planning permission.

87 Environmental Protection Agency.

88 Malone v GCHL Limited & Ors [2024] IEHC 336.

89 §54.

§§19 & 28.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

o Specifically, neither Art. 19 TEU nor the caselaw of the CJEU requires that use of s.160 be permissible to impugn the lawfulness of a planning permission as issued in breach of EU law or to cure such a breach. Cases cited for the procedural autonomy of Member States in the provision of effective remedies include Inuit Tapiriit Kanatami.91 f. Planree92 is authority that unauthorised development is a precondition to s.160 relief and such relief may be granted only to ensure that unauthorised development or development in breach of a planning condition is not carried out or continued. S.160 provides injunctive reliefs – it cannot provide the reliefs sought at §§4, 5 and 6 of the ONoM.

g. There is no suggestion, much less evidence, that Laois CC or the Board has effected, is effecting, or is likely to effect unauthorised development or development in breach of a planning condition within the meaning of s.160 PDA 2000 and so they are incorrectly respondents to the ONoM.

h. S.50 PDA 2000 prescribes in terms that a decision of a planning authority or the Board can be challenged only by judicial review within O.84 RSC. The two earliest permissions preceded the PDA 2000 but s.82(3A) of the 1963 Act93 was to the same effect. Morris,94 Narconon Trust95 and Malone v GCHL96 are cited for such procedural exclusivity.

i. Any challenge to the Permissions is time-barred by s.50(7) PDA 2000, which prescribes that such judicial review must start within 8 weeks of notice of the making of that decision. Extensions of time are possible. But - as noted in Foran97 even a day late is too late and, citing Fennelly J in De Roiste,98 “Explicable delays have usually been a matter of months and very rarely years”.

j. The Applicants tender no evidence which would allow an extension of any of those time limits in accordance with s.50(8) PDA 2000. S.50(8) requires both “good and sufficient reason for doing so”

and that the circumstances that resulted in the failure to make the application in time were outside the control of the applicant for the extension. Insofar as s.50(8) may be considered inapplicable to the two earliest permissions, O.83 r21(3) RSC similarly requires good and sufficient reason to extend time and that the circumstances that resulted in the failure to make the application in time either were outside the applicant’s control or could not reasonably have been anticipated by the applicant. In the case of Mr Malone and Mr McEvoy, none of those conditions are satisfied in respect of any of the Permissions they impugn.

k. Impugning the validity of the Permissions via s.160 rather than in judicial review and in time is an impermissible collateral attack on the Permissions. As to whether proceedings are a collateral attack,

91 Case C‑583/11 P Inuit Tapiriit Kanatami v Parliament and Council.

92 Donegal County Council v Planree [2024] IEHC 193 §44, [2024] IECA 300 §41.

93 Local Government (Planning and Development) Act 1963, as inserted by s.19(3) of the Local Government (Planning and Development) Act 1992.

94 Morris v Ireland [2022] IEHC 472 §63. Salmon Watch Ireland v ALAB [2024] IEHC 608 (Remittal) §29 is also cited but it merely repeats the statutory

provision.

95 Narconon Trust v An Bord Pleanála [2021] IECA 307 per Costello J §§41 to 51 & 67 to 68, and Collins J §§1–8.

96 §§74 & 81.

97 Foran v ABP & Galway City Council [2025] IEHC 175 §§26, 27, 34 & 37.

De Roiste v Minister for Defence [2001] IESC 4, [2001] 1 IR 190.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

substance prevails over form – even if certiorari is not pleaded. Sweetman (Houston),99 Morris,100 Narconon Trust101 and Malone102 are cited.

l. The procedural exclusivity and time limits of s.50 PDA 2000 do not breach the Art. 19(1) TEU guarantee of effective national remedy for breach of EU Law – citing Eco Advocacy,103 Stadt Wiener Neustadt,104 Holohan,105 SS (Pakistan),106 and Krikke.107 And, as is observed in Foran,

“[t]ime limits in judicial review are not ends in themselves: their purpose is to foster legal certainty and public confidence in and capacity to rely on public law decisions and to plan and act accordingly” and “time limits for commencement of judicial review of impugned decisions based on or challenged by reference to principles EU law have been held to comply with the EU Law effective remedy principles of equivalence and effectiveness – see for example Carrownagowan.”

m. The Applicants’ entitling the proceedings in reliance on Art. 19(1) TEU does not alter the nature or scope of, or the relief obtainable in, the s.160 proceedings. Nor does it alter the effect of s.50(2) PDA 2000. What matters is that, as stated, the procedural exclusivity and time limits of s.50 PDA 2000 do not breach the Art. 19(1) TEU guarantee of effective remedy.

n. While, in virtue of the Art. 4(3) TEU principle of sincere cooperation, a State authority must remedy failure to do EIA, the obligation only arises when remediation is within the sphere of competence of the authority at issue – citing Wells108 and Carrownagowan.109 It is not competent for the High Court in a s.160 application to consider whether there has been a failure to do EIA or the resultant validity of planning permissions.

SUBMISSIONS - BOOTH

59. Booth’s submissions overlap considerably with those of the Board and Laois CC. They submit that:

a. The proceedings should be struck out/dismissed as an impermissible collateral attack on the Permissions, by reference to alleged EIA and AA deficiencies, the time for judicial review of which is

99 Sweetman v An Bord Pleanála & Houston, [2018] IESC 1, [2018] 2 IR 250. §§6(43) & 7(34).

100 Morris §63 et seq, §87, 90, 115.

101 Narconon Trust v An Bord Pleanála [2021] IECA 307 per Costello J §§41 - 51 & 67 - 68, and Collins J §1–8.

102 Malone §81.

103 C-721/21 Eco Advocacy CLG v An Bord Pleanála [2024] Env LR 8 (2023) EU:C:2023:477 §21.

104 C-348/15 Stadt Wiener Neustadt v Niederösterreichische Landesregierung EU:C:2016:882, [2017] Env LR 20.

105 Holohan v An Bord Pleanála [2017] IEHC 268 §103 – “Given the wide scope of judicial review in Ireland, the proposition that it provides an effective

remedy is acte clair.”

106 SS (Pakistan) v The Governor of the Midlands Prison [2018] IEHC 442 §19. Upheld on appeal by the Court of Appeal - [2018] IECA 384. Overturned

[2019] IESC 37, [2019] 3 IR 595, but not on this point.

107 Krikke v Barranafaddock Sustainability Electricity Limited [2022] IESC 41, [2023] 1 ILRM 81, [2022] 11 JIC 0303. Woulfe and Hogan JJ at §§87 to 89

and 28 to 35 respectively.

108 Wells v Secretary of State for Transport (C-201/02) EU:C:2004:12 §§64 & 90.

Carrownagowan v ABP [2023] IEHC 579 §§96 – 106.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

long past. Booth cites Gleeson,110 Morris111 and Malone112 for the jurisdiction to “dismiss proceedings where they are being used as a mode of collateral attack on a final and binding decision.”

b. The proceedings are in part an attempt to re-run the 2005 s.160 proceedings settled by Mr McEvoy in 2009. The Applicants seek “all costs and expenses incurred by them Applicants over 25 years “including those arising from earlier proceedings ...” and “compensation for financial and nonfinancial harm suffered by the Applicants …”. There is no substance to this demand and it is unsuitable for litigation in s.160 proceedings.

c. There is no evidence of any unauthorised development. There has been and is no waste disposal on Site. The Site does not drain to streams or rivers. Only clean uncontaminated surface water is allowed to leave the Site. This is regularly tested in compliance with planning conditions and the results go to the Planning Authority. All trade effluent is recycled and reused on Site. There is no evidence of any risk to the freshwater pearl mussel. The Applicants have adduced no expert evidence in support of their claims.

d. In any event, alleged waste activities are not properly the subject of s.160 proceedings.

o I may as well say now that I would not strike out the proceedings on this account: it seems at least arguable that waste activities could constitute unauthorised development within the meaning of the PDA 2000.

e. Booth makes submissions on the principles governing the Court’s jurisdiction in a strike out application

– citing Gleeson113 and Mohan.114 I will consider these issues below.

REPLYING EVIDENCE & SUBMISSIONS – MR MALONE & MR MCEVOY

AFFIDAVITS

60. Much of Mr Malone’s replying affidavit,115 consists of inadmissible reassertions of his expertise, recounting of complaints to the EU Commission and repetition of legal submissions and factual averments – often by way of direct reference to the content of his and Mr McEvoy’s earlier affidavits. It is argumentative to a degree well beyond the inevitable. He makes a generalised allegation of project-splitting for EIA purposes by reference to the multiplicity of planning permissions and repeats his assertions as to deficiencies of EIA screening and AA screening in the Permissions. He describes compliance with Article 6(3) of the

Habitats Directive as a central issue in the proceedings and asserts that it is “reasonable to infer” that the Site

is proximate to the River Barrow and River Nore SAC, which “suggests a potential hydrological connection” between the Site and the SAC requiring AA Screening.

110 Gleeson v Ireland [2024] IEHC 415 §27.

Morris v Ireland [2022] IEHC 472.

112 [2024] IEHC 336, [2024] 5 JIC 1607 §7.

113 Gleeson v Ireland and the Attorney General [2024] IEHC 415 §§22 to 28.

114 Mohan v Revenue Commissioners [2025] IEHC 63.

Sworn 23 April 2025.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

61. Mr Malone asserts that his estimate of waste deposits on Site is based on area measurements, elevation changes, and long-term visual records, including the exhibited photographs. The Quarry area is

23.69 hectares (58.5 acres). He assumes waste disposal over approximately 40 acres at a depth of 20 feet, which equates to approximately 987,000 to 1.48 million tonnes, depending on the type of waste and the degree of compaction.

62. I observe that, insofar as the evidence before me goes, this estimate appears to be highly theoretical, based on a number of critical assumptions which may or may not be verified or verifiable and dependent on the application of expertise and judgment which, as a party, Mr Malone may not personally deploy and of which expertise there is, in any event, no evidence. On the present state of the evidence, the estimate can only be described as highly speculative and I lend it no weight. However, for present purposes of the motions before me, it seems to me that the quantification of any waste deposits is a secondary issue. The real issue is whether, in the more general sense, substantial waste deposition may have occurred on the Site.

63. Mr McEvoy’s replying affidavit,116 consists essentially of information as to his complaint to the Commission about the Quarry. Essentially, that complaint117 covers much of the ground on which the Applicants rest the present proceedings, including submission of the photographs described above. It refers to Booth’s large scale importation of sand and gravel from other allegedly unauthorised quarries to the concrete works on the Site - alleging “a material change of use and intensification at Ballymullen site, which unlawfully transformed a former quarry site into an unregulated industrial complex with serious environmental consequences”.

SUBMISSIONS

64. As recited above, Mr Malone:

• At the hearing, supplied written submissions118 much of which I have described above.

• After the hearing, did not avail of the opportunity given him to supply written submissions as to the significance of the s.261A determination of 2012.

65. As to the jurisdiction to strike out/dismiss, Mr Malone, a. Cites Barry119 for its being reserved to “plain and obvious” cases. This is not in dispute.

116 Sworn 23 April 2025.

117 Complaint (2024) 1941.

118 Entitled “Oral submission for Hearing in Case 2025-17 MCA”.

Barry v Buckley [1981] IR 306.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

b. Invokes the caselaw – including Rewe120 and Impact121 - limiting the principle of procedural autonomy of Member States by reference to the principles of effectiveness and equivalence.

c. Asserts that the proceedings cannot be frivolous, vexatious or an abuse of process as they seek judicial enforcement of clear and binding EU law obligations.

d. Cites Aer Rianta122 for the view that O.19 r.28 RSC does not permit the striking out of part only of the s.160 Motion.

o I may as well say now that Aer Rianta preceded the amendment of O.19 r.28 RSC - which now both permits such a course and codifies the former parallel inherent jurisdiction to strike out/dismiss – see Mohan.123

e. Draws attention to aspects of the Applicants’ affidavits.

JURISDICTION TO DISMISS/STRIKE OUT

O.19 R.28 RSC & INHERENT JURISDICTION

66. Historically, the jurisdiction to strike out or dismiss proceeding as, for various reasons, bound to fail, had two distinct bases - O.19 r.28 RSC and the inherent jurisdiction of the court. There is much caselaw on their substantive differences. But in 2022, O.19 r.28 RSC was amended to read, as relevant,

“(1) The Court may, on an application by motion on notice, strike out any claim or part of a claim which:

(i) discloses no reasonable cause of action, or

(ii) amounts to an abuse of the process of the Court, or

(iii) is bound to fail, or

(iv) has no reasonable chance of succeeding.

…

(3) The Court may, in considering an application under sub-rule (1) or (2), have regard to the pleadings and, if appropriate, to evidence in any affidavit filed in support of, or in opposition to, the application.

(4) Where the Court makes an order under sub-rule (1), it may order the action to be stayed or dismissed, as may be just, and may make an order providing for the costs of the application and the proceedings accordingly.”

Simons J in Mohan124 describes the amended O.19 r.28 RSC as having codified the inherent jurisdiction to make such orders. Accordingly, the earlier caselaw as to

Case C-33/76 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland [1977] 1 CMLR 533.

121 Case C-268/06 Impact v Minister for Agriculture and Food [2008] 2 CMLR 47.

122 Aer Rianta v Ryanair [2004] IESC 23.

123 Mohan v Revenue Commissioners [2025] IEHC 63, [2025] 2 JIC 1301.

§9.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

• the distinctions between O.19 r.28 RSC jurisdiction and the inherent jurisdiction, recedes in importance;

and

• the scope of those jurisdictions, considered together, remains relevant.

67. The four categories in O.19 r.28(1) RSC overlap – for example Clarke J said in Keohane125 that “bringing a case which is bound to fail is an abuse of process” and Scotchstone126 is authority that the jurisdiction “is centred on the concept of abuse of process”.

FRIVOLOUS OR VEXATIOUS

68. Mr Malone was a little agitated by the phrase ‘frivolous or vexatious’ in the respondents’ notices of motion. The phrase is characteristic of the inherent jurisdiction. No doubt wisely given its colloquial meaning, the phrase does not appear in the amended O.19 r.28 RSC. In law, the phrase has non-colloquial meanings. As Barr J in Morris127 and Barron J in Farley128 have observed, helpfully if perhaps a little leniently, “the words “frivolous and vexatious” are legal terms. They are not pejorative in any sense.”

So, ‘vexatious’ proceedings are those which unjustifiably put a defendant to cost, effort or even unjustified worry and inconvenience129 in defending worthless proceedings or which unjustifiably consume scarce court resources. The word encompasses actions brought for an improper purpose, including harassment and oppression by multiple proceedings brought for purposes other than the assertion of legitimate rights – Scotchstone.130

Birmingham J in Nowak131 held that “frivolous, in this context does not mean only foolish or silly, but rather a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome”. In Fox132 Irvine J described “frivolous” as describing “proceedings which the court feels compelled to terminate because their continued existence cannot be justified having regard to the relevant circumstance.”

69. Given its omission from O.19 r.28 RSC, use of the phrase ‘frivolous or vexatious’ should perhaps be discontinued as something of an archaism and liable to be misunderstood by laypeople. It might well be no loss as Fay133 is authority that the concepts it describes are encompassed in the phrases used in O.19 r.28 RSC

- “abuse of the process of the Court”, “bound to fail” and “no reasonable chance of succeeding”. Delahunty134

125 Keohane v Hynes [2014] IESC 66.

126 Scotchstone Capital v Ireland [2022] IECA 23, [2022] 1 JIC 3103 §276.

127 Morris v Ireland [2022] IEHC 472, [2022] 7 JIC 2703.

128 Farley v Ireland (Unreported, Supreme Court, 1st May 1997).

129 Fay v Tegral Pipes Ltd [2005] IESC 29.

130 Scotchstone Capital Fund Ltd and Piotr Skoczylas v Ireland and The Attorney General [2022] IECA 23, [2022] 1 JIC 3103 §268.

Nowak v Data Protection Commissioner [2012] IEHC 499, also Fox v McDonald [2017] IECA 189 and Morris v Ireland [2022] IEHC 472, [2022] 7 JIC

2703.

132 Fox v McDonald [2017] IECA 189 – cited in Gleeson v Ireland and the Attorney General [2024] IEHC 415 §28.

133 Fay v Tegral Pipes Ltd [2005] IESC 29 Delahunty v Player Wills Ireland Ltd [2006] IESC 21.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

usefully described the jurisdiction as exercisable in actions “entirely devoid of merit” and Fay is authority that

the courts are for resolving genuine disputes and are not a proper forum for legally baseless lost causes.

KEOHANE, MOYLIST & SCOTCHSTONE

70. The Supreme Court (Clarke J) considered the inherent jurisdiction in Moylist,135 inter alia considering Keohane.136 Moylist was considered by the Court of Appeal in Scotchstone.137 Adjusting their findings to reflect the later amendment of O.19 r.28 RSC, and at the cost of some repetition, those cases are now authority138 that:

a. The fundamental and default position is that proceedings should go to trial. Parties should be deprived of a trial only when there is clearly no real risk of injustice in doing so.

b. The underlying basis of the jurisdiction to dismiss proceedings before trial stems from the court's inherent entitlement to prevent abuse of process. Inter alia, it is unfair to burden a defendant with the cost, effort and delay of a pointless trial. As noted above, bringing a case which is bound to fail is abuse of process.

c. Where the evidence put on affidavit for the plaintiff, if accepted at trial, might arguably lead to the plaintiff succeeding, that is an end of the matter – the action is not dismissed. But it does not necessarily follow that a plaintiff, to get a trial, must put evidence of that type before the court in a motion to dismiss. All (s)he need to do is advance a credible basis for suggesting that at trial it may be possible to establish the facts necessary to the success of the proceedings. This is a low bar. Trials often take unanticipated turns on the facts.

d. The “important” case of Jodifern139 is authority that “The function of the court is to consider one question only, was it proper to institute the proceedings? This question must be answered in the light of the statement of claim and such incontrovertible evidence as the defendant may adduce.”

e. Clarke J cited Burke140 to the effect that “the court cannot seek to resolve conflicts of fact in an application to dismiss as being bound to fail, but rather is required to accept the facts as deposed to on behalf of the plaintiff.” Clarke J considered it “important to emphasise that the extent to which it is appropriate for the Court to assess the evidence and the facts on a motion to dismiss as being bound to fail is extremely limited”. Accordingly, while the proposition that the Plaintiff’s factual position must be taken at its height may overstate the position, it does not do so by much. The Plaintiff’s case must exceed mere assertion in that there is evidence, or may credibly be likely to be evidence at trial, to support it. And, as has been seen, at least “incontrovertible evidence” from the defendant can weigh.

135 Moylist Construction v Doheny [2016] IESC 9, [2016] 2 IR 283.

Keohane v Hynes [2014] IESC 66.

137 Scotchstone Capital v Ireland [2022] IECA 23, [2022] 1 JIC 3103 §279.

138 Citations are of Moylist unless otherwise indicated.

139 Jodifern v Fitzgerald [2000] 3 IR 321.

Burke v Anglo Irish Bank [2011] IEHC 478, Birmingham J.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

f. Whether, more generally, a claim has no reasonable chance of succeeding, is bound to fail or amounts to an abuse of process, may be assessed, at least to some extent, on the evidence, facts and “in particular an analysis of documents”. However, as stated there are significant limitations on the extent to which a court can engage with the facts.

g. Whether a claim discloses no reasonable cause of action is assessed on the pleadings only. (In the narrow sense, I do not think this is affected by O.19 r.28(3)). I interpose here to suggest that in a process in which pleadings are absent, such as s.160 proceedings, it seems to me that the analysis must include the evidence. However, a case will not be dismissed if a reasonable amendment to the pleadings could save it from being unstateable. The Plaintiff defending the motion must, at least usually, propound the basis for such an amendment141 and that may require a consideration of evidence.

h. It is an abuse of process to bring a claim where the rights allegedly breached and/or the obligations allegedly not met are defined by documents and where there is no reasonable basis for suggesting that the relevant documents could establish the rights and obligations asserted.

i. The court can, on a motion to dismiss, resolve issues of law or construction of documents - On a motion to dismiss it may become “clear beyond argument” what a document means. There may be cases in which the legal or documentary issues are clear and straightforward such that it is safe for the court to decide them on a motion to dismiss.

j. But only where those issues are relatively straightforward and where there is no real risk of injustice by doing so in the somewhat limited framework of a motion should dismissal ensue. Proceedings should not be dismissed where complex legal issues or questions of construction arise requiring careful analysis that can only be done safely at trial and where the facts could be fully explored.

k. Clarke J cautioned against dismissal under the inherent jurisdiction where, even absent factual disputes or a factual dispute resolvable on such a motion, nonetheless the legal issues or issues of interpretation of documents are complex. “In such cases, the very complexity of the issues (even if the court has a fairly clear view on them) makes it difficult to determine, within the confines of a motion heard on affidavit, that the plaintiff's case is such that it can safely be said that it is bound to fail.”

l. It is emphasised that the jurisdiction is to be sparingly exercised and adopted only when it is clear that the proceedings are bound to fail. It is not exercisable merely if the plaintiff's case is very weak or to have an early determination on some point of fact or law or to resolve issues on a summary basis. An application to dismiss under the inherent jurisdiction is not a surrogate summary disposal procedure. Scotchstone cites Purcell142 to the effect that a stateable case will not be stuck out even if it does not amount to a prima facie case.

141 Moylist §26.

Irish Bank Resolution Corporation Ltd v Purcell [2016] 2 IR 83.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

m. I would add that the import of this last observation as setting a low bar to the case proceeding to trial is illustrated by the description in O’Brien143 of the concept of a prima facie case:

“a prima facie case will be made out when, on the evidence available, it would be open to a tribunal of fact, if no other evidence was given, or if that tribunal accepted that evidence even though contradicted in its material facts, to enter a verdict for that party”.

n. The jurisdiction may be exercisable:

o Where a plaintiff's factual allegation is no more than a mere assertion for which there is no evidence or credible basis for believing that there could be any evidence. Conversely, a credible basis for believing that there could be any such evidence requires trial.

o On a consideration of documents governing the parties’ legal relations or forming the only possible evidential basis for the claim.

o “Where the case is wholly, or significantly, dependent on documents, then it may be much easier for a court to reach an assessment as to whether the proceedings are bound to fail.” 144 But that is only the case where it is clear beyond argument what such documents mean.145 And the jurisdiction is not exercisable where there is evidence of a context which may realistically cast doubt on the meaning of the documents or which may require consideration of what ought to be the consequences of the wrong alleged.

o. While the circumstances in which the court can engage with the facts are not closed, other than those indicated above such circumstances will be unusual.

p. There are cases which are “just not suitable” for an application to dismiss under the inherent jurisdiction. These include cases involving:

▪ Factual disputes - save to the very limited extent to which it is appropriate to engage with the facts – as set out above. “Experience has shown that the trial of an action will identify a variety of circumstances perhaps not entirely contemplated at earlier stages in the proceedings; often times it may appear that the facts are clear and established but the trial itself will disclose a different picture.”146 ▪ Complex issues of law or construction requiring careful analysis which can only be done safely at a trial and where the facts can be fully explored.

71. Scotchstone147 reviewed the applicable principles – citing Murray CJ in Re Vantive Holdings148 to the effect that “abuse of process may take many forms according to the context or the nature of the proceedings” – including cases which may have a reasonable chance of success but would confer no tangible benefit on a plaintiff. In environmental cases, this concept of tangible benefit to the plaintiff requires enlargement to reflect the public purposes and aims of environmental litigation.

143 Ulster Bank v O'Brien, [2015] 2 IR 656. MacMenamin J §2.

144 Citing Lopes v Minister for Justice Equality & Law Reform [2014] IESC 21.

The judgment refers to contracts but the principle seems to me applicable to documents generally.

146 Citing Sun Fat Chan v Osseous Ltd [1992] 1 IR 4. Clarke J cites Bakht v The Medical Council [1990] 1 IR 515 and Philips v The Medical Council [1991] 2

IR 115 as an example of the difference oral evidence can make in cases involving facts the subject of a documentary record.

147 Scotchstone Capital v Ireland [2022] IECA 23, [2022] 1 JIC 3103.

Re Vantive Holdings [2009] IESC 69, Murray CJ.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

GLEESON, CINNÉIDE & MCHUGH – 2024 & 2025

72. In Gleeson149 and in Cinnéide150 Dignam J cited the caselaw151 and helpfully summarised as follows152 the “overarching principles” governing the jurisdiction to dismiss or strike out:

• First, the default position is that proceedings should go to trial and that a person should only be deprived of a trial when it is clear that there is no real risk of injustice.

• Second, it is a jurisdiction to be exercised sparingly, given that it relates to the constitutional right of access to the courts.

• Third, the onus is on the moving party to establish that the case should be dismissed or struck out and the threshold is high.

• Fourth, the Court must take the plaintiff's claim at its high-water mark (in my view this may go a little too far – see above).

• Fifth, the Court must be satisfied not just that the plaintiff will not succeed but cannot succeed.

• Sixth, the Court must be satisfied that the plaintiff's case could not be saved by amendment to the pleadings or by pre-trial procedures such as discovery or by the evidence at trial.

73. Dignam J also cited various weighty obiters153 as to the conflicting policy considerations at play in concluding that the court should be very slow to consider striking out parts of a claim and should only contemplate doing so in rare and clear cases and, in particular, only where the claim is made up of separate and distinct elements

74. As Hyland J recently summarised in McHugh,154 a matter that is either factually or legally complex is highly unlikely to be suitable for disposal by a motion to strike out.

MOHAN - 2025 & PROSPECT OF AMENDMENT

75. As has been seen, recently in Mohan, Simons J, described the amended O.19 r.28 RSC as having codified the inherent jurisdiction to strike out or dismiss before trial. Though he did not cite Moylist or Scotchstone, he cited Keohane on which much of Moylist was based. In my view Mohan, Keohane, Scotchstone and Moylist are of a piece. Simons J observed of such applications that:

149 Gleeson v Ireland and the Attorney General [2024] IEHC 415 §§22 to 28.

150 Cinnéide & Ors v An tÁrd-Aighne & Ors [2024] IEHC 682.

151 Barry v Buckley [1981] IR 306, Salthill Properties Limited v Royal Bank of Scotland PLC [2009] IEHC 207, Lopes v Minister for Justice, Equality and Law

Reform [2014] IESC 21, Keohane v Hynes [2014] IESC 66, Clarington Developments Limited v HCC International Insurance Company PLC [2019] IEHC

630, Kearney v Bank of Scotland [2020] IECA 92, Scotchstone Capital Fund v Ireland [2022] IECA 23, and McAndrew v Launceston Property Finance DAC

& Anor [2023] IECA 43.

152 I have made minor amendments.

153 Dignam J §30 et seq, citing Collins J in Ballymore Residential Ltd & anor v Roadstone Ltd & Ors [2021] IECA 167 and Stack J in Christian v Symantec

Ltd [2022] IEHC 397. It was also touched upon by Cregan J in Ryanair DAC v SC VOLA.RO SRL [2022] IEHC 741.

McHugh v Minister for Environment [2025] IECA 57.

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• It is not enough that the case is very weak and is likely to be successfully defended. The court must be satisfied that the proceedings disclose no cause of action and/or are bound to fail. Dismissal is a matter of last resort.

• The court may consider the underlying merits of the case to a limited extent. The court does not engage in depth with issues of credibility. Confidence that “there is no credible basis for suggesting that it may, at trial, be possible for the plaintiff to establish the facts which are asserted in the pleadings, and which are necessary for success in the proceedings” must be considered against the backdrop that the application to dismiss will have been brought early in the proceedings, when the possibility of procedural mechanisms — such as discovery of documents, interrogatories, and the power to subpoena witnesses — will not yet have been exhausted. Trials often take unanticipated turns on the facts.

• If, nonetheless, it can be established that there is no credible basis for suggesting that the facts are as the Plaintiff asserts and that the proceedings are bound to fail on the merits, then the proceedings can be struck out pursuant to the amended O.19 r.28 RSC.

• To aid fairness, litigants must plead their case precisely. A case may be struck out where the pleadings disclose no reasonable cause of action – even where a deficiency in pleading is masking what would otherwise be a good cause of action.

• However, a plaintiff faces only a low threshold of showing a realistic possibility that deficient pleading might be rectified by amendment. In such a case, decision on the motion to strike out may be deferred pending a motion to amend.

76. In the present case, Mr Malone and Mr McEvoy have intimated no desire to amend their proceedings. Simons J, in Mohan, mentions differences in the cases as to whether the Plaintiff must intimate a such a desire or whether the court may itself identify potential amendments.155 As has been seen, Moylist156 suggests that the Plaintiff must intimate amendment. Delaney & McGrath cite Darragh,157 Fulham158 and Rippington159 for the view, put at its height in Rippington, that “there is an obligation on that party, at minimum, to provide some broad outline of the proposed amendments for consideration by the court and, more importantly, by an opponent.”

77. On the other hand, Finlay Geoghegan J in VK v MW,160 suggests that, despite limits to the circumstances in which the court should consider or suggest an amendment that would result in a cause of action being pleaded, in some circumstances “it may be incumbent on a judge to consider whether an amendment ought to be permitted even in the absence of an express application to amend.” This seems to have been obiter as VK seems, if only in a general sense, to have sought to amend his pleadings.161 Collins J

155 Simons J cites Delany and McGrath on Civil Procedure (Round Hall, 5th ed’n, 2023) at §16–33 to §16–37.

156 §26.

Darragh v Darragh [2018] IEHC 427 §36, McDonald J.

158 Fulham v Chadwick’s [2021] IECA 72 §59, Haughton J (Ní Raifeartaigh and Collins JJ agreeing).

159 Rippington v Duffy [2021] IECA 97 §33, MacGrath J (Costello and Collins JJ agreeing).

160 [2018] IECA 290 §35.

§31.

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in North Westmeath Turbine Action Group162 notes, without comment, the difference of view. Simons J in Mohan suggests that it “would appear to cut against the adversarial nature of litigation were the court to propose amendments of its own volition.”

78. I agree with Simons J and as a general proposition with the requirement that the Plaintiff must propose the amendment – if only in broad outline. That seems to be the weight of authority. However, I do not think the rule is rigid and lay litigants may be assisted in the interests of justice, including by way of elucidation of pleadings – Heavey.163 I suggested, obiter in Heavey that, as a matter of discretion, a judge may in the interests of justice “assist a lay litigant, in a modest way and without descending into the lists, in amending a statement of grounds the better to elucidate the real issues between the parties”. Indeed, Finlay Geoghegan J’s remarks in VK v MW were made in the explicit context of the “particularly difficult situation” posed to the Court where the pleadings were those of a lay litigant and she expressed the duty of the judge deciding a motion to dismiss to consider the possibility of amendment in the context of the fact that the

Plaintiff was a “litigant in person”.164 But ultimately and essentially the same rules apply to lay litigants as

apply to represented litigants. Fairness to both sides is the watchword. In Heavey it was said that such

assistance of a lay litigant could not amount to “wholesale rewriting” of their pleadings and is subject to “the

imperative that the judge may not enter the lists as a partisan”. And even in VK v MW, while contemplating judicial initiative as to the possibility of amending pleadings, Finlay Geoghegan observed that “There are obviously limits to the circumstances in which the court should consider or suggest an amendment which would result in a cause of action being pleaded.” And that should be considered only in “some circumstances”.

HENDERSON IN MOTIONS TO DISMISS

79. Having regard to Mr McEvoy’s earlier s.160 proceedings, Booth also point to Morris165 and Gleeson166 for the applicability of the rule in Henderson167 in a motion to dismiss public law litigation. Though not a strict rule, Henderson is directed at abuse of process by litigants in raising in later proceedings issues which they should have raised in earlier proceedings. I do not think it useful to further consider the point as, at best from Booth’s point of view, it would leave Mr Malone’s case intact. Even if Mr Malone was advising Mr McEvoy as to the 2005 s.160 proceedings, application of Henderson to an advisor would be novel and, I think, unlikely. Certainly, as to the Henderson point, these proceedings would survive to trial.

162 North Westmeath Turbine Action Group v An Bord Pleanála [2022] IECA 126 §41, Collins J.

163 Heavey v An Bord Pleanála [2024] IEHC 480 §§ 8 & 51, citing Hall v Stepstone Mortgage Funding Ltd [2016] IEHC 110, FG v Child and Family Agency

[2016] IEHC 156, Talbot v Hermitage Golf Club [2014] IESC 57, Donlon v Burns [2022] IECA 159 and Munnelly v Hassett [2023] IESC 29.

164 §§24 & 35 and Ryan P, dissenting, §§57, 58, 64, 87.

165 Morris v Ireland [2022] IEHC 472, [2022] 7 JIC 2703 §76 – 81.

166 Gleeson §26 citing Morrissey v Irish Bank Resolution Corporation [2015] IEHC 200 §5.

Henderson v Henderson [1843] 3 Hare 100.

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MOTIONS TO DISMISS IN SUMMARY PROCEEDINGS

80. I will consider below the question whether there is a jurisdiction to dismiss summary proceedings on a motion. Here, I address some practical considerations.

81. As Hyland J observed in McHugh,168 whether to bring a motion to dismiss should be carefully considered - they can take up considerable time (as this motion has done), of the parties and of the court, with all the attendant costs, including of extensive exchange of affidavits and voluminous exhibits. A matter that is either factually or legally complex is highly unlikely to struck out. The cases canvassed above concerned motions in plenary proceedings. That is unsurprising. Clearly, the prospect of avoiding a pointless plenary trial may have many, considerable and, in a proper case, legitimate attractions to a defendant and, for that matter, to the court. However, that prospect is, at least generally, far less compelling where the proceedings are themselves summary in nature or are likely to be disposed of on affidavit and/or by way of motion in any event. Putting it slightly glibly, a motion to avoid a motion may be merely wasteful. While it may save costs of replying and supplementary affidavits, this saving may be undone by the costs of the motion to dismiss – including affidavits sworn for that purpose. And as summary applications, at least typically, get on more quickly than plenary trials, the prospect of avoiding delay is the less compelling. Of course, a prospect of RAS Medical169 cross-examination may render a motion to dismiss attractive if something like a plenary trial is in view - but if there is a real prospect of dispute on material facts, a motion to dismiss is all the less likely to succeed in any event.

82. In other words, where the proceedings are summary in nature – as is the case in s.160 applications - a motion to dismiss may well prove to be the shortcut that is the longest way home. In my view, and at least in general, motions to dismiss summary proceedings are not to be encouraged.

83. That said, I must decide the motions before me. Also, and for reasons which will become apparent, I do consider that the motions to dismiss by the Board and Laois CC were, in this particular case, a sensible course and, in their slipstream, the motion by Booth was, perhaps, unsurprising.

S.160 PDA 2000 & S.50 PDA 2000 AS RELEVANT & QUARRYING: WORKS OR USE

S.160 – “PLANNING INJUNCTIONS”

84. S.160, as relevant, reads as follows:

160.—(1) Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court … may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or

168 McHugh v Minister for Environment [2025] IECA 57.

RAS Medical v Royal College of Surgeons in Ireland [2019] 1 IR 63.

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to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure, as appropriate, the following:

(a) that the unauthorised development is not carried out or continued;

(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;

(c) that any development is carried out in conformity with—

(i) in the case of a permission granted under this Act, the permission pertaining to that development or any condition to which the permission is subject, or …

(3) (a) An application … for an order under this section shall be by motion …

(6) (a) An application …. under this section shall not be made—

(i) in respect of a development where no permission has been granted, after the expiration of a period of 7 years from the date of the commencement of the development,

(ii) in respect of a development for which permission has been granted ... after the expiration of a period of 7 years beginning on the expiration, as respects the permission authorising the development, of the appropriate period (within the meaning of section 40170) or, as the case may be, of the appropriate period as extended under section 42, or

(aa) 171 Notwithstanding paragraph (a) an application to the High Court ... for an order under this section may be made at any time in respect of unauthorised quarry development … in the following circumstances:

(i) where no permission for the development has been granted under Part III and the development commenced not more than 7 years prior to the date on which this paragraph comes into operation;172

(ii) where permission for the development has been granted under Part III and, as respects the permission — (I) the appropriate period (within the meaning of section 40), or (II) the appropriate period as extended under section 42 or 42A, expired not more than 7 years prior to the date on which this paragraph comes into operation.

(ab) 173 Notwithstanding paragraph (a) or (aa), an application to the High Court …. may be made at any time for an order under this section to cease unauthorised quarry development.

(b) Notwithstanding paragraph (a), an application for an order under this section may be made at any time in respect of any condition to which the development is subject concerning the ongoing use of the land.”

S.40 prescribes the limit of the duration of a planning permission. The default period is 5 years from the grant unless, under s.41 PDA 2000, the

grant specifies a different period.

171 Inserted (15.11.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s.29, SI No. 583 of 2011.

172 i.e. in 2004.

Inserted (15.11.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 29, SI No. 583 of 2011.

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The difference between s.160(6)(aa) and s.160(6)(ab) would appear to be that after expiry of the relevant 7- year period the only s.160 order which can be made as to an unauthorised quarry is that its further development cease.

S.160 – SCOPE, RESPONDENTS & REMEDIES

85. S.160 is a bespoke, statutory and practical remedy for a particular mischief – unauthorised development. It seems to me to have, inter alia, the following characteristics:

a. While by s.160(1) a remedy may be imposed on “any person”, it is in my view clear that the remedy may only be directed to a person in a practical position to remedy, in whole or in part, the unauthorised development. Persons not, at least potentially, in such a position should not generally be made respondents to such motions.

b. There may be an argument in a particular case for joining the planning authority as a notice party in view of its role in planning enforcement. That may arise, for example, in a case where the public interest might require its opinion on or supervision of environmental remediation of a site or where the attitude of the planning authority is likely to be significant to the exercise of judicial discretion as to whether, and if so in what terms, a s.160 remedy should be imposed.

c. Significantly s.160 applications must, by s.160(3)(a), be sought by motion. As the Supreme Court said in McTigue,174 the s.160 process is intrinsically summary in nature. That does not rule out “RAS Medical” cross-examination, or even conversion to plenary hearing with directions as to pleadings, if a particular case requires – and s.160 permits the courts to regulate their own procedures to render them compliant with constitutional norms. But such cases should in practice be rare - Murray.175 That case confirmed that the view no longer prevails that statutory planning injunctions are merely emergency/fire brigade remedies – see also Moore.176 In Murray, McKechnie J, obiter,177 did not see how, in such a motion, “any issue of law, no matter how complex, far reaching or significant it might be, cannot be adequately dealt with by way of submissions, and determined by the judge. Whether the commencement process is summary in nature or plenary in nature should have no bearing on how issues of law are presented, argued, addressed and adjudicated upon.” But that the statutorily mandated procedure is by motion on affidavit and without pleadings suggests that the norm is a relatively quick and simple procedure focussed closely on remedying a particular unauthorised development. McKechnie J also recalled that:

“one of the major objectives behind this legislative process is the desire that issues of planning control should be dealt with effectively and efficiently and in the most expeditious way possible. If every alleged infringement, or even a majority thereof, could not be litigated

174 An Taisce v McTigue Quarries [2018] IESC 54, [2019] 1 ILRM 118, citing Meath County Council v Murray [2018] 1 IR 189.

Meath County Council v Murray [2018] 1 IR 189 §17.

176 Moore v Minister for Arts, Heritage and the Gaeltacht, [2018] IECA 27, [2018] 3 IR 291.

§42 – “In any event, this type of issue does not even arise in this case.”

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in this way, that objective would be stood down. That should not happen, nor is there any necessity for it.”

Declaratory Jurisdiction in s.160?

86. Fortune #4178 is authority that in s.160 proceedings declaratory orders can be made in virtue of the High Court’s general, free standing, independent and full original constitutional jurisdiction and obligation, distinct from the special jurisdiction under s.160, to furnish a real, adequate and effective remedy.179 A declaration was granted against a backdrop in which, in earlier judgments,180 Hogan J had refused to order the demolition of what he considered to be Ms Fortune’s unauthorised but constitutionally-inviolable dwelling. That approach was doubted in Kinsella181 and overturned in Murray.

87. However, the declaration granted in Fortune #4 was specifically that the impugned development was unauthorised – which is the legal premise of any s.160 injunction. On that view, the declaration merely articulates what a s.160 injunction implies and it was granted in an unusual context in which injunctive relief was refused. Indeed, it is impossible for a court to issue a s.160 injunction unless it has concluded that the impugned development is unauthorised – so one could consider that there is little stretch in so declaring.

88. Kearns P in Kinsella182 later took the view that s.160 conferred a special statutory original jurisdiction

- not a subsidiary equitable jurisdiction to enforce public law. He said:

“The jurisdiction is thus firmly based on what the Court is required by statute to address in the event that it makes an order. The jurisdiction under s.160 is conferred on both the High Court and the Circuit Court. It says nothing about declarations. The Circuit Court does not enjoy any free-standing jurisdiction to grant declaratory relief in public law matters and the jurisdiction of the High Court on appeal from the Circuit Court is confined to jurisdiction which the Circuit Court may itself exercise.”

This last sentence is notable – Kearns J, in deciding a Circuit Appeal, could not exercise the full original jurisdiction of the High Court on which Hogan J had relied. He could exercise only the jurisdiction of the Circuit Court – which, unlike the High Court, has only the jurisdictions which statutes confer. So Kearns P did not purport to describe the jurisdiction of the High Court as the court of first instance in a s.160 application.

For all that, I respectfully agree with Kearns P that s.160 confers a special statutory original jurisdiction – and

confers it on the High Court such that “The jurisdiction is thus firmly based on what the Court is required by statute to address in the event that it makes an order.”

178 Wicklow County Council v Fortune (No.4) [2014] IEHC 267.

Citing, inter alia, Albion Properties Ltd v Moonblast Ltd [2011] IEHC 107, [2011] 2 IR 563; The State (Vozza) v O’Floinn [1957] IR 227 at 250; Meadows

v Minister for Justice [2010] IESC 3; and S v Minister for Justice, Equality and Law Reform [2011] IEHC 31.

180 Wicklow County Council v Fortune (No.1) [2012] IEHC 406; Wicklow County Council v Fortune (No.2) [2013] IEHC 255.

181 Wicklow County Council v Kinsella & Anor [2015] IEHC 229.

Wicklow County Council v Kinsella & Anor [2015] IEHC 229.

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89. The s.160 applicants in St Margaret’s183 sought, and were refused in the exercise of discretion,184 declarations that certain developments were unauthorised. Notably, this was the same sort of declaration granted in Fortune #4. Barrett cited Fortune #4 in rejecting the DAA’s submission that the court can’t exceed the precise statutory remedy conferred by the clear and comprehensive code that is s.160, which is to be construed strictly and does not permit declarations. I respectfully agree with Barrett J that Fortune #4, though overruled on other grounds in Murray and notwithstanding Kinsella, remains good authority for the declaratory jurisdiction exercised by Hogan J. Though it Supreme Court determinations are non-precedential, it is nonetheless notable that, in refusing leave to appeal in St Margaret’s,185 that court observed that:

“the decision of the High Court depended ultimately on a routine application of discretion in planning matters arising under s.160, rather than on any novelty as to the range of remedies available under that section …”;

“if the Court had granted a declaration purporting exercise of a jurisdiction under s.160 … the novelty of that approach, and the fact that the decision in … Fortune (No. 4) was disapproved in … Murray …, might have meant that it may have been desirable to grant leave in this case in order to clarify those issues.”

90. In my view, whether one views it as implied in s.160 or as deriving from the more general original jurisdiction of the High Court, and as the caselaw stands, there is a jurisdiction in s.160 proceedings to grant declarations. However, it appears to me that Fortune #4 compels only, and I would find only, a jurisdiction to declare whether a particular development is unauthorised – as that is the issue of legal status on which the exercise of a s.160 jurisdiction is premised. It may be, but I need not decide, that there is a jurisdiction to make a declaration as to the applicability or otherwise of the 7-year time limit on the grant of s.160 relief. But any wider declaratory jurisdiction is unnecessary to the purpose of s.160 and would subvert what I consider to be the focussed nature of what, I respectfully consider, Kearns J correctly identified as a special statutory original jurisdiction firmly based on what the Court is required by statute to address in the event that it makes an order.

91. That view seems to me also consistent with the view of s.160 as an essentially summary process and the view of McKechnie J that a major objective of s.160 is that planning control issues be dealt with as effectively, efficiently and expeditiously as possible. That objective would be significantly jeopardised by recognition of any declaratory jurisdiction in s.160 proceedings beyond declarations closely related to focus and purpose of s.160. It is not a Trojan Horse for deployment in attack on wider strategic issues of planning or environmental law. Nor, as will be seen as to collateral attack, is it an outflanking path around Thermopylae for those legitimately shut out, by time limits or otherwise, from directly attacking the validity of planning decisions in judicial review.

183 St Margaret's Concerned Residents Group v Dublin Airport Authority PLC [2017] IEHC 694. Barrett J helpfully reviewed much relevant caselaw.

184 See §86 & 87 of the judgment.

St Margaret's Concerned Residents Group & Ors v Dublin Airport Authority PLC [2018] IESCDET 101.

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INVALIDATION OF DECISIONS - S.50 PDA 2000 – PROCEDURAL EXCLUSIVITY & TIME LIMITS

92. As relevant, s.50(2) PDA 2000 states as follows:

“(2) A person shall not question the validity of any decision made or other act done by—

(a) a planning authority, a local authority or the Board in the performance or purported performance of a function under this Act, … otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts …...”

93. S.50(2) notably distinguishes planning judicial review from judicial review generally. Generally, as to public law reliefs and leaving aside statutory interventions similar to s.50(2),186 procedural exclusivity is not strict in Irish law – Abdelaatti187 and Shell.188 So, depending on circumstance, it may be possible to seek public law reliefs other than pursuant to the judicial review procedure supplied by O.84 RSC – notably, by plenary proceedings. Even then, judicial review time limits usually apply by analogy - Shell. However, as a notable exception to that general procedural flexibility, s.50(2) does establish procedural exclusivity in judicial review of decisions made by a local authority or the Board pursuant to the PDA 2000. In other words, the validity of such decisions must either be challenged in judicial review pursuant to O.84 RSC or not at all – they cannot be challenged by other procedural means. And, as the statutory use of the word “questioned” suggests, they cannot be challenged even indirectly by other procedural means.

94. As the Supreme Court unanimously said in KSK189 of the similarly phrased s.82(3A) of the 1963 Act190 the Oireachtas intended by it

“… that a person who has obtained a planning permission should at a very short interval after the date of such decision in the absence of a judicial review be entirely legally protected against subsequent challenge to the decision that was made and therefore presumably left in a position to act with safety upon the basis of that decision.”

95. Lay litigants tend to overlook the force and importance of procedures and to suggest that they must inevitably yield in the face of substantive error. It is far from invariably the case that court procedures – especially those required by statute – can be dismissed as mere procedures. As Barr J said in Morris,191 court procedures “have largely been designed to promote efficiency and fairness in the conduct of litigation”. As Humphreys J said in Drumakilla,192 in rebutting a suggestion that a failure to seek an extension to time to seek judicial review was a formality which could not frustrate a challenge to a breach of EU law, “if the

186 E.g. s.5 of the Illegal Immigrants (Trafficking) Act 2000, which provided that a person shall not question the validity of a deportation order under

s.3(1) of the Immigration Act 1999 save by application for judicial review under O.84.

187 Abdelaatti v College of Anaesthesiologists of Ireland [2024] IEHC 341 §5.

Shell E&P Ireland Ltd v McGrath [2013] IESC 1, [2013] 1 IR 247 §§45 to 47.

189 KSK Enterprises Ltd v An Bord Pleanála [1994] 2 ILRM 1.

190 Local Government (Planning and Development) Act 1963.

191 Morris v Ireland [2022] IEHC 472, [2022] 7 JIC 2703.

O'Donnell v An Bord Pleanála [2023] IEHC 381

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applicants can ignore domestic law as to time because it is a formality, then what else can they ignore? Can they wander into court without pleadings or affidavits, without seeking leave, without paying stamp duty, without complying with rules of court or practice directions? The whole doctrine cooked up by the applicants appears on the face of things to be a recipe for procedural chaos.” In this context, and as Barr J also said in Morris, while some leeway is possible, lay litigants are bound by the same rules as represented litigants. Given the high importance of efficiency and fairness in the conduct of litigation, that is unsurprising. Nor, generally, does the imposition of reasonable procedural rules conflict with the fundamental right of access to the courts. These principles apply to this case.

96. The same rationale applies to the observation that shorter and strict time limits apply to seeking judicial review than to the commencement of other types of proceedings. S.50(6) PDA 2000 imposes an 8- week time limit from the date of the impugned decision and s.50(8) PDA 2000 allows extension of that time limit only in strictly limited circumstances. In Sweetman (ESB Wind),193 Haughton J said that the time limit “is strict and one in respect of which the power to grant an extension is also to be strictly construed”. In Shell, Clarke J explained that

“At least at the level of broad generality there is a significant public interest advantage in early certainty as to the validity or otherwise of such public law measures. People are entitled to order their affairs on the basis that a measure, apparently valid on its face, can be relied on. That entitlement applies just as much to public authorities. The underlying rationale for short timeframes within which judicial review proceedings can be brought is, therefore, clear and of significant weight.”

97. In Morris, the plaintiff sought various reliefs by plenary summons – inter alia, orders quashing two planning permissions. For various reasons, Barr J struck out the proceedings against some of the defendants as bound to fail, frivolous and vexatious and an abuse of process. As here relevant, Morris is authority that

“s.50(2)(a) imposes a strict requirement of procedural exclusivity, such that a decision to which this section applies can only be challenged by way of judicial review proceedings and may not be impugned or challenged in any way in other proceedings. The effect of the phrase “shall not question the validity of”, is that the collateral challenging or questioning of the Board's decision in other types of proceedings, will not be permitted.”194

98. Morris is authority that allied to s.50 is the principle that courts will not allow collateral attack on decisions that have “effectively become immune from challenge due to the efflux of the period within which they may be challenged”. Such procedural exclusivity imposes on the putative questioner of the validity of a

decision the requirements of the procedure in question. Barr J describes the s.50(6) time limit as “very strict”

and the possibilities of its extension under s.50(8) PDA 2000 as very limited. He cites the Supreme Court in

193 Sweetman v An Bord Pleanála & ESB Wind [2017] IEHC 46.

Emphases added.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

Sweetman (Houston)195 (as did Costello J in Narconon Trust196) for the rationale of such strict time limits and the rule against such collateral attack as being the clear legislative intention identified in KSK197 and

“A party who has the benefit of an administrative decision which is not challenged within any legally mandated timeframe should not be exposed to the risk of having the validity of that decision subsequently challenged in later proceedings which seek to quash the validity of a subsequent

decision on the basis that the earlier decision was invalid. Like consideration would apply to a State

decision maker who has rejected an application or other similar decisions.

The requirements of legal certainty make clear that a person who has the benefit of a decision which is not challenged within whatever time limit may be appropriate is entitled to act on the assurance that the decision concerned is now immune from challenge subject to very limited exceptions such as fraud and the like.”

99. Inasmuch as Mr Malone and Mr McEvoy raise constitutional issues, Morris, citing Nawaz,198 is authority that they can be raised in judicial review. Accordingly, even where constitutional issues arise, no difficulty arises from s.50(2) PDA 2000 such as would justify departure from the procedural exclusivity it imposes.

100. S.160 PDA 2000 is not a judicial review procedure pursuant to Order 84 RSC and so, the validity of planning decisions cannot be questioned in s.160 proceedings.

S.160 – TIME LIMITS & DURATION OF PLANNING PERMISSIONS

101. The time limit regime applicable to s.160 applications as to unauthorised quarries is particular. S.160(6)(a) and (aa) impose time limits depending on circumstances set out therein. However s.160(6)(ab)

permits a s.160 application at any time – there is no time limit – where the remedy is limited to an order “to

cease unauthorised quarry development” – as opposed, for example, to an order to remediate the lands.199

102. As will have been seen, time limits for bringing s.160 applications may turn on the duration of a planning permission – its “appropriate period” within s.40 PDA 2000. The default appropriate period is 5 years from the grant of permission. By s.40(1), on its expiry the permission shall, if the development is commenced during that period, cease to have effect as regards “so much of the development as is not completed within that period”. Remembering that, by s.3 PDA 2000, “development” consists of “the carrying

195 Sweetman v An Bord Pleanála & Houston, [2018] IESC 1, [2018] 2 IR 250.

196 Narconon Trust v An Bord Pleanála [2021] IECA 307 Costello J, §§45 – 47.

Cited above.

198 Nawaz v Minister for Justice Equality and Law Reform [2013] 1 IR 142 – in which the Supreme Cort rejected a challenge by plenary summons to the

validity of a deportation order as in breach of the procedural exclusivity imposed by s.5 of the Illegal Immigrants (Trafficking) Act 2000 which required

such challenges to be by judicial review under Order 84.

A distinction to which Irish Planning Law and Practice, Bloomsbury, Part 5, §A45 refers.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

out of any works on, in, over or under land or the making of any material change in the use of any structures or other land”, it is notable that by s.40(2), s.40(1) does not apply, inter alia, to:

• any permission for the retention on land of any structure;

• the continuance of any use, in accordance with a permission, of land;

• obligations under planning conditions as to completed developments.

103. Accordingly, it may be important to consider whether quarrying consists of works which must cease on expiry of the permission or of use which may go on thereafter. Browne200 seems doubtful on the point – though he cites the Supreme Court in Goode201 as holding that sand and gravel extraction constituted both works development and material change of use development and, at least on the facts of a case, the concepts were not necessarily discrete but might overlap – which Browne considers the “better view”. Browne cites Finlay Geoghegan J in Roadstone Provinces202 as:

• Citing Goode and stating that there is “undoubtedly considerable overlap and, on occasion, confusion in relation to the consideration of the works carried out on land as part of the quarrying operation and the use of land as a quarry”.

• Noting that the same operations may constitute both o works on land and, so, development, and o evidence or an indication of the use to which lands are being put, or whether there is a change in that use. But the works are only indicative of the nature of the use as distinct from themselves constituting the use.

• Taking the view, having regard to the definition of development in s.3 PDA 2000, that there remain two distinct potential types of development of quarry lands: i.e. material change in the use of the lands or the carrying out of works thereon.

104. Browne cites Meenan J in Bulrush Horticulture203 as applying Goode in holding that it was hard to see how peat excavation could be anything other than works even if also involving material change of use. Further, Budd J considered in Quirke,204 a quarry case, that:

“… it is necessary that the permission should remain in existence throughout the time that the operations continue because, as was pointed out in Thomas David (Porthcawl)205 the moving of every shovelful of material is a mining operation and a separate act of development.”206

Browne appears to accept the proposition that “each time a shovelful of material is extracted this constitutes the carrying out of development.”207

200 Simons on Planning Law, 3rd ed’n (Browne) §2-164 et seq.

201 Kildare County Council v Goode [1999] 2 IR 495, [2000] 1 ILRM 346.

202 Roadstone Provinces Ltd v An Bord Pleanála [2008] IEHC 210 §§17, 23, 24, 37, 4. & 48.

203 Bulrush Horticulture Ltd v An Bord Pleanála [2018] IEHC 58.

204 Westmeath County Council v Michael F Quirke & Sons, 1998 WJSC-HC 13134, [1996] Lexis Citation 6904.

Thomas David (Porthcawl) Limited & Anor v Penybont Rural District Council & Ors [1972] 3 All ER 1092 at 1096, Denning MR.

206 Though Budd J considered that the English cases turned on their particular statutory contexts.

§16-57, Citing Thomas David (Porthcawl).

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

105. The foregoing raises a question, which Mr Malone and Mr McEvoy raise, whether after the expiry of a planning permission for quarrying to which the default duration of 5 years applies, further extraction works constitute unauthorised development. It seems to me a potentially complex question which should not be decided save on full argument rather than on a motion to dismiss / strike out.

TEU, TFEU, CFREU, GENERAL PRINCIPLES OF EU LAW & JUDICAL REVIEW AS EFFECTIVE REMEDY

106. Mr Malone and Mr McEvoy rely in particular on Article 19(1) TEU and Article 47 CFREU (the requirement of effective domestic judicial remedy for breaches of EU law), Article 4(3) TEU (the principle of sincere cooperation by Member States with the EU), the primacy of EU law over domestic laws, Article 191 TFEU (the EU aim of ahigh level of environmental protection and the polluter pays principle) and Article

29.4.6 Bunreacht.208 Essentially, they say that domestic courts must act as decentralised EU courts and ensure compliance with EU law by providing effective remedies in environmental law. Broadly, that is correct. But, as will be seen, a broad view is insufficient.

107. Article 19(1) TEU provides, inter alia, for what is known in EU law as the principle of “effective remedy” - that “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.” In similar vein, Article 47 CFREU209 provides that:

“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.”

108. Article 4(3) TEU provides for the principle of sincere cooperation – that:

“Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives.”

109. Declaration A17 TEU210 recalls that the Treaties, and EU law adopted on the basis of the Treaties, have primacy over the law of Member States, under the conditions laid down by the case law of the CJEU211 and attaches an Annex recognising that primacy as “a cornerstone principle of” EU law.

208 Inter alia - 6° No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, … necessitated by the

obligations of membership of the European Union … or prevents laws enacted, acts done or measures adopted by — the said European Union … from

having the force of law in the State.

209 Charter of Fundamental Rights of the European Union (2010/C 83/02).

210 Declarations Annexed to the final act of the Intergovernmental Conference which adopted the Treaty of Lisbon, signed on 13 December 2007, A.

Declarations Concerning Provisions of the Treaties, 17. Declaration Concerning Primacy.

Case C- 6/64 Costa/ENEL, 15 July 1964, is cited.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

110. Article 191(2) TFEU provides that

“Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.”

PROCEDURAL AUTONOMY – EQUIVALENCE, EFFECTIVENESS - TIME LIMITS & COLLATERAL ATTACK

111. Particularly notable for present purposes is the general principle of EU law of the “procedural autonomy” of Member States - first recognised in Rewe212 and since recognised repeatedly in the caselaw, including Impact,213 Inuit Tapiriit Kanatami,214 XC215 and Eco Advocacy.216 Those cases are authority that:

a. Absent EU rules harmonising such procedures, it is for the domestic legal system of each Member State to designate the courts having jurisdiction in actions at law intended to ensure the protection of EU law rights and to determine the procedural conditions governing such actions. The EU law right must be exercised before the national courts in accordance with the procedures laid down by national rules. This is the principle of procedural autonomy.

b. Art 19 TEU is not intended to create new remedies before the national courts to ensure the observance of EU law other than those already laid down by national law. There is an exception where the domestic legal system provides no remedy making it possible, even indirectly, to ensure respect for EU law rights.217 But, given the provision for judicial review, that exception does not apply here.

c. The principle of procedural autonomy is subject to the principles of equivalence and effectiveness.

d. The principle of equivalence requires that such domestic procedures must not be less favourable than those relating to similar actions of a domestic nature. I would add that the explicit requirement merely of equivalence itself implies that EU law does not require special procedural rules affording greater access to justice in cases involving EU law than in similar cases involving domestic law - as long as the principle of effectiveness is also satisfied.

e. The principle of effectiveness requires that domestic procedures provided must not render the exercise of rights conferred by EU law virtually impossible or excessively difficult.

212 Case C- 33/76 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland [1977] 1 CMLR 533.

213 Case C-268/06 Impact v Minister for Agriculture and Food [2008] 2 CMLR 47.

Case C‑583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council §§100 et seq.

215 Case C-234/18, XC, Judgment 24 October 2018.

216 CASE C-721/21 Eco Advocacy CLG v An Bord Pleanála [2024] Env LR 8 (2023), EU:C:2023:477 §21.

217 Case C‑583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council §§102; Case C-432/05 Unibet (London) Ltd v Justitiekanslern [2007] ECR

I-2271; [2007] 2 CMLR 30 §40.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

f. In actions asserting that a decision of a national authority is incompatible with EU law, such procedures may, subject to equivalence and effectiveness, permit of defences that limitation periods laid down by national law have expired.

112. Both effectiveness and equivalence are required by the principle of sincere cooperation of Member States with the EU enshrined in Article 4(3) TEU - XC. Subject to those requirements, the force of the principle of procedural autonomy, even in the face of a situation incompatible with EU law, is illustrated by XC. In that case the CJEU held, as to a national procedural rule of res judicata in criminal proceedings and being satisfied in the circumstances of the case as to equivalence and effectiveness, that “EU law does not require a national court to disapply domestic rules of procedure conferring finality on a judgment, even if to do so would make it possible to remedy a domestic situation which is incompatible with EU law.”218

113. As was said in McQuaid Quarries,219 citing, inter alia, Stadt Wiener Neustadt220 and Sweetman (Houston):221

• As to the principle of procedural autonomy and absent EU rules in the field, Member States are in charge of the procedures by and within which cases travel through and are dealt with in their legal system - provided that such rules are not less favourable than those governing similar national actions (principle of equivalence) and that they do not render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness).222

• The imposition and application of time limits are quintessentially procedural matters. EU law permits reasonable time limits for bringing proceedings. It does so in the interests of legal certainty, which protects both the individual and the administrative authority concerned. Such time limits, once reasonable, are not liable to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law – i.e. they do not offend the principles of equivalence and effectiveness.223

• The concept of collateral attack - of an indirect questioning of - an administrative law decision is closely associated with such time limits.224 The concept has its roots in the effective administration of justice, in litigation fairness and in legal certainty. A person who has the benefit of an administrative decision the validity of which is not challenged within a time limit applicable to the proceedings appropriate to such challenge should not be at risk of its validity being later challenged in other proceedings – for example, seeking to quash a later decision on the basis that the earlier decision was invalid. Legal certainty requires that such a person be entitled to act on the assurance that the decision is immune from challenge save for limited exceptions such as fraud and the like.225

218 Emphasis added.

219 An Taisce v An Bord Pleanála & McQuaid Quarries [2021] 1 IR 119.

220 Case C-348/15 Stadt Wiener Neustadt v Niederösterreichische Landesregierung, EU:C:2016:882, [2017] Env LR 20.

Sweetman v An Bord Pleanála [2018] IESC 1, [2018] 2 IR 250.

222 §§143 & 156. Emphasis added.

223 §§143 & 156.

224 §143.

§145.

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• EU law does not preclude national procedural rules obliging a party to bring environmental law proceedings within a time limit.226

114. I observe that while the concept of collateral attack is a domestic-law concept, that of legal certainty

– invoked in McQuaid - is a general principle of EU law and of advanced legal systems generally. It requires that those subject to the law should be able clearly to ascertain their rights and obligations.227 It is, therefore, no surprise to see it applied to the issue of time limits, even in the context of alleged infringement of EU law.

115. Humphreys J, in upholding judicial review time limits in Drumakilla,228 cited Stadt Wiener Neustadt in the specific context of the procedural autonomy of Member States, to the effect that

“it is compatible with EU law to lay down reasonable time limits for bringing proceedings in the interests of legal certainty, which protects both the individual and the administrative authority concerned. In particular, it finds that such time limits are not liable to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law”.229

116. Humphreys J observed that the principle of effectiveness in EU law “is that the domestic procedural rule must not make it in practice impossible or excessively difficulty to exercise EU law rights. It is not a principle that any and every applicant must be allowed to win their case, or that nobody can be held to fall

foul of a procedural rule because that would “frustrate” the objectives of a directive.”230 And, citing Krikke,231

he said that it was fundamental that “there isn't anything inherently unlawful about national law providing rules about things like time limits as an aspect of the principle of national procedural autonomy.232” I refer also to the excerpts from Foran already cited above as to the rationale for time limits. In SS(Pakistan) Humphreys J observed that, given the principle of national procedural autonomy, domestic procedural time limits apply to actions based on EU law. A procedure that allows a reasonable opportunity to assert EU law

rights is compliant with the principle of effectiveness, even if a particular applicant loses the ability to enforce

those rights by not availing of the opportunity in a timely manner. A procedure does not breach the principle of effectiveness merely because a particular applicant loses their case.

117. Ballyboden TTG (Ardstone)233 included an allegation in judicial review that the long-since extended Local Area Plan (LAP) on which the impugned planning permission was based was invalid due to lack of a Strategic Environmental Assessment (SEA) at the time of extension. A declaration was sought to that effect

226 §155 – citing Case C-664/15 Protect Natur-, Artenund Landschaftsschutz Umweltorganisation v Bezirkshauptmannschaft Gmünd, EU:C: 2017:987,

§§87–90.

227 Wyatt & Dashwood, European Law, 6th ed’n p328.

228 O'Donnell v An Bord Pleanála [2023] IEHC 381.

229 Stadt Wiener Neustadt §40 & 41 - citing in turn judgments of 15 April 2010, Case C-542/08 Barth, EU:C:2010:193, §28, and of 16 January 2014, Case

C-429/12 Pohl, EU:C:2014:12, §29.

230 §153.

231 Krikke v Barranafaddock Sustainability Electricity Limited [2022] IESC 41, [2023] 1 ILRM 81, [2022] 11 JIC 0303.

232 §151.

Ballyboden Tidy Towns Group v An Bord Pleanála & Ardstone Homes [No 2] [2025] IEHC 277.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

and was refused by Humphreys J. S.50 PDA 2000 applied to the decision to extend the plan and Humphreys J cited the Supreme Court in Nawaz234 to the effect that the s.50 time limit couldn’t be circumvented by seeking declaratory relief. He cited “almost unending authority to the effect that unchallenged decisions stand – the fallacious contrary misconception was best described in U.T.”235 as “the erroneous belief that every decision, no matter its provenance, nature or form, is always capable of being appealed or at least reviewed”. Humphreys J cited numerous authorities holding that the collateral challenge is impermissible even in an EU law context – including Stadt Wiener Neustadt,236 SS (Pakistan),237 Narconon Trust,238 and Krikke.239

Meadows - 2010

118. The Applicants cite the Supreme Court in Meadows240 for the obligation of national courts to ensure effective remedy for breach of EU law obligations. I am not sure it is authority for that proposition but nothing turns on that as the proposition is essentially correct. However, Meadows is of interest in considering the requirements of effective national judicial remedy in respect of administrative or quasijudicial decisions imposed by Irish constitutional law and Article 13 of the European Convention on Human Rights. In both regards, the remedy of judicial review passed muster.

Narconon Trust - 2021 & Killross Properties - 2016

119. In Narconon Trust241 the Court of Appeal held that the Board was precluded from determining applications for s.5 declarations242 where, in the absence of change of circumstance, the planning authority had, 2 years earlier, made a s.5 declaration as to the same alleged development.243 That earlier declaration had not been challenged in judicial review, nor had the matter been referred to the Board. In bona fide reliance thereon, Narconon had spent €7,750,000 on construction works and fit out. The applications to the Board were deemed an impermissible collateral attack on the earlier declaration and were prohibited by s. 50(2) PDA 2000. Costello J said of s.50(2) PDA 2000:

“Thus, the Oireachtas clearly intended that all decisions of a planning authority, … should be protected against attempts to challenge their validity, otherwise than by means of judicial review in accordance with s. 50(2) of PDA 2000.”

234 Nawaz v Minister for Justice [2012] IESC 58, [2013] 1 I.R. 142 (Clarke J).

235 UT (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1095, [2019] 6 WLUK 379 (Coulson L.J).

236 Case C-348/15 Stadt Wiener Neustadt v Niederösterreichische Landesregierung, Judgment of 17 November 2016, ECLI:EU:C:2016:882.

237 SS (Pakistan) v Governor of the Midlands Prison [2018] IEHC 442, [2018] 7 JIC 1704.

238 Narconon Trust v An Bord Pleanála [2021] IECA 307, [2021] 11 JIC 1701.

239 Krikke v Barranafaddock Sustainable Electricity Ltd [2022] IESC 41, [2023] 1 ILRM 81, [2022] 11 JIC 0303 per Hogan J at §§87-95.

240 Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701.

241 Narconon Trust v An Bord Pleanála [2021] IECA 307 per Costello J §§41-51 & 67-68 and Collins J §§1–8.

242 S5 PDA 2000 authorises the Board to make declarations “as to what, in any particular case, is or is not development or is or is not exempted

development”.

Change of use from a nursing home to a residential drug rehabilitation facility.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

120. Importantly for present purposes, as to whether a particular application was a collateral attack on an earlier decision, Costello J considered that substance and practicality prevails over form.244 To deprive the beneficiary of an earlier administrative decision which had not been challenged in time would be objectionable – inter alia as in breach of requirements of legal certainty. Notably, Costello J cited Killross Properties.245 In that case a s.160 application was dismissed as bound to fail as it was an impermissible collateral attack on s.5 declarations which had declared the development exempted development such that, as planning permission was not required, it could not be unauthorised development within s.160.

121. It seems to me that, by analogy, both Narconon Trust and Killross Properties support the proposition that the present s.160 proceedings are an impermissible collateral attack on the Permissions.

Krikke – 2022 & Four Districts - 2023

122. Krikke246 is importantly analogous for present purposes as case in which s.160 proceedings failed as a collateral challenge, in breach of s.50 PDA 2000, to an earlier and unchallenged decision of a planning authority – and this was so even where the challenge asserted breach of EU law.

123. In Krikke, a 2011 planning permission to modify a permitted (but as yet unbuilt) wind farm by increasing the rotor blade diameter included a “Boland” condition247 that the details of proposed wind turbines be agreed with the planning authority prior to development. In response to a compliance submission, the planning authority in 2013 issued a “decision letter” or “compliance decision” agreeing the developer’s proposed details – which included a diameter increase from 90 to 130 metres while remaining within the tip height248 stipulated in the permission. The turbines were erected accordingly and began operating in 2015.

124. In 2018, prompted by residents’ complaints, the Board made a s.5 declaration249 that the increase in rotor diameter did not come within the scope of the 2011 permission. In 2019, the applicants, relying on the s.5 declaration, sought s.160 orders restraining use of the turbines. Inter alia - the case was complex250 – the applicants questioned the validity of the 2013 compliance decision as in breach of the EIA Directive for want, at least, of EIA screening which had not been done. Thus an issue arose whether, by reason of s.50 PDA 2000, the applicants ought to have moved earlier to challenge the 2013 compliance decision.

244 Citing Sweetman v An Bord Pleanála [2018] 2 IR 250; [2018] IESC 1 and Goonery v Meath County Council [1999] IEHC 15.

245 Killross Properties Ltd v Electricity Supply Board [2016] IECA 207, [2016] 1 IR 541.

Krikke & Ors v Barranafaddock Sustainable Electricity Ltd [2022] IESC 41, [2023] 1 ILRM 81. I have simplified the facts.

247 See Boland v An Bord Pleanála [1996] 3 IR 435.

248 the highest point reached by the tip of a blade.

249 S.5 PDA 2000.

Inter alia as to the legal effect of s.5 Declarations.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

125. Inter alia, the Supreme Court applied Stadt Wiener Neustadt251 in holding that the s.50 time limits governing a challenge to the validity of a planning decision – including a challenge alleging breach of the EIA Directive - comply with the EU law requirements of both equivalence and effectiveness. S.50 did not make it impossible or excessively difficult to exercise rights conferred by the EIA Directive in circumstances where the appellants had never sought judicial review of the compliance decision and had never tested the s.50 time limit. Though the decision was not expressly framed in terms of Art. 19 TEU, in substance it found judicial review to be an effective remedy.

126. Woulfe J said: “(t)he obvious difficulty for the appellants is that, on the face of it, this252 appears to constitute a collateral attack on the validity of the compliance decision, which appears to fly in the face of s.50.” He agreed with the Court of Appeal, which had held that the case law of the CJEU did not entitle an applicant, by s.160 proceedings, to avoid s.50 PDA 2000 and its time limit and to mount a collateral challenge to a planning decision and/or act on the basis that an issue of compliance with the EIA Directive arose. He also rejected any general proposition that s.50 does not apply to a decision bad on its face and/or exhibiting an error of law. Also, s.50(2) PDA 2000 applied to issues both of pure domestic law and of EU law.

127. Specifically as to the effectiveness of domestic law time limits having regard to EU law requirements of effective remedy, Woulfe J cited Stadt Wiener Neustadt as confirming:

• The principle of procedural autonomy of Member States - subject to the requirements of equivalence and effectiveness.

• That, provided those requirements are met, a Member State may oblige a challenger to a development or development consent on EU law grounds to take particular procedural routes (I add the clear implication of such an obligation – that a Member State may shut out such challengers from relief if they fail to take such routes and this is so even if their underlying challenge is sound in substance).

• That reasonable time limits for starting proceedings do not offend the principle of effectiveness - do not “make it in practice impossible or excessively difficult to exercise” EU law rights.

Woulfe J considered that Stadt Wiener Neustadt, as to time limits, was unaffected by Derrybrien (No. 2)253 in which the CJEU considered and did not condemn s.50 time limits as breaching the principles of equivalence and effectiveness.

128. Woulfe J concluded:

“89. Applying those principles to s.50 of the 2000 Act, in my opinion the time limit rules in s.50 governing a challenge to the validity of a planning decision based on the requirements of the EIA Directive comply with both the principle of equivalence and the principle of effectiveness, … Such rules, including in particular the rule allowing for an extension of the eight week period, are not less favourable than those governing similar national actions. Such rules do not render practically

251 Case C-348/15 Stadt Wiener Neustadt, EU:C:2016:882.

252 i.e. the S.160 application.

Case C-261/18 Commission v Ireland, Judgment of 12 November 2019 EU:C:2019:955.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

impossible or excessively difficult the exercise of rights conferred by EU law, considering in particular again the potential for an extension of time.

90. On the facts of the present case, it seems to me very difficult for the appellants to argue that the time limits in s.50 make it in practice impossible or excessively difficult to exercise rights conferred by the EIA Directive, in circumstances where they have never sought to apply for judicial review of the compliance decision and have never tested the operation of the time limit rules.”

129. Hogan J “entirely agreed” with Woulfe J – saying that even if the decision was unlawful “so that the

decision was in principle liable to be quashed, the effect of s.50(2) of the 2000 Act is nonetheless now to shield that decision from judicial challenge”.

130. Hogan J cited Danqua,254 in which a 15-day time limit had not passed muster in the CJEU,255 “in the

light of its implications for the application of EU law” and by reference, inter alia, to “the protection of the

rights of the defence, the principle of legal certainty and the proper conduct of the procedure”. It had been held in Danqua, that “in respect of national rules which come within the scope of EU law, it is for the Member

States to establish those time limits in the light of, inter alia, the significance for the parties concerned of the

decisions to be taken, the complexities of the procedures and of the legislation to be applied, the number of persons who may be affected and any other public or private interests which must be taken into consideration”, Hogan J held that the 8-week time limit, with the possibility of extension, sufficed and that “the applicants cannot realistically complain of any supposed difficulties attending the eight-week period because they never actually sought to apply for judicial review. And nor, for that matter, did they seek to

extend time …” He held that “it cannot be said that the statutory time limit in s.50(2) contravenes the general

EU law principles of equivalence and effectiveness.” As to equivalence, he pointed out that s.50(2) “applies indistinctly to all types of planning decisions and does not differentiate in any way as between domestic and EU law grounds of challenge.” Hogan J concluded

“While there are certainly features of the Council's decision-making in relation to the grant of permission which are unhappy and not entirely satisfactory, such is the effect of s.50(2) of the 2000 Act that the validity of such decisions cannot now be questioned in the present s.160 planning injunction proceedings.”

In other words, even an unsatisfactory decision survives if not challenged in time and, where procedural exclusivity applies, by the right procedure.

131. I need not here recite at length the decision in Four Districts.256 It suffices to say that Humphreys J explains why the substantive scope of judicial review renders it an effective remedy at EU law for breaches of EU law. To this observation one may add reference to the recent decision in Coolkill257 and, all the more so,

254 Case C-429/15 Danqua v The Minister for Justice EU:C:2016:789.

A 15-day limitation period in respect of an application by an asylum seeker for subsidiary protection was at issue.

256 Four Districts Woodland Habitat Group v An Bord Pleanála [2023] IEHC 335. Also, Flannery v ABP [2022] IEHC 83.

257 Concerned Residents of Coolkill v An Bord Pleanála [2025] IEHC 265.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

to the confirmation of judicial review as an effective remedy for EU law purposes by the Supreme Court in Pervaiz.258

EFFECTIVE REMEDY – ONE ONLY REQUIRED & INTERPRETIVE OBLIGATION

132. It may be obvious but perhaps bears observing that the provision of an effective remedy sufficient in EU law to enable the vindication of a particular right or obligation of EU law - in this case the remedy of judicial review – not merely satisfies but exhausts the obligation to provide effective remedy. There is no obligation to provide multiple or fallback effective remedies – much less an obligation that every conceivably relevant remedy must be effective to enable the vindication of that particular right or obligation of EU law.

133. A fortiori that is so where, as here, the invocation of, as it were, a second bite at the cherry of effective remedy is aimed at evading proper and EU law-complaint limitations on the effective remedy of judicial review provided by national law – including requirements of procedural exclusivity and time limits. As those principles are applicable here, it follows that there is at EU law no obligation to so interpret s.160 PDA 2000 as to allow the Applicants to evade the procedural exclusivity and time limits imposed by s.50 PDA 2000. In short, the validity of planning permissions – and, for that matter s.231A declarations – can be questioned only in judicial review commenced in time and not by way of s.160 proceedings.

REMEDIAL OBLIGATION - KRIKKE & CORRIDONIA

134. The remedial obligation of the State as to breaches of EU law is related to, but independent of the Art. 19(1) requirement of effective judicial remedy. They should not be confused. The remedial obligation applies not just to judicial remedies but to all State organs within their respective spheres of competence. Here the Applicants attempt to mobilise the remedial obligation against the Board and Laois CC for their alleged failure to remedy the breaches, as the Applicants have it, of EIA law, Habitats law, public participation law and the Waste and Water Framework Directives.

135. Hogan J in Krikke shed helpful light on the relationship between the application of time limits to individual litigants and the remedial obligations of the State at EU Law. He said it was unnecessary to decide if the rotor blade extension triggered a need for EIA:

“31. … Even if it did, the effect of s.50(2) is to immunise that decision from legal challenge at the hands of these applicants, although, of course, in the light of the decisions of the Court of Justice in both Wells259 and Stadt Wiener Neustadt, the State may still possibly have independent obligations

258 Pervaiz v Minister for Justice [2020] IESC 27, [2023] 2 IR 244.

Case C-201/02 Wells v Secretary of State for Transport, Judgment of 7 January 2004, EU:C:2004:12.

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under EU law vis-à-vis the site. I express no view whatever in relation to this because it could make no difference to the outcome of this particular appeal.” 260

136. Humphreys J said in Carrownagowan261 that Krikke had held that national time limits on the commencement of legal proceedings for effective remedy did not have to be disapplied simply because it was said that an EU law remedial obligation arose.

137. The view of Hogan J cited above seems to me consistent with the view of Kokott AG in Corridonia262 - a case not cited to me directly but cited in the cases cited to me. Kokott AG cited the obligation, under the Art.4(3) TEU principle of sincere cooperation, to remedy failure to do EIA or a defective EIA. She observed

that the omission of an EIA must be remedied at a later stage -“if this is still in fact possible”. She espoused

“pragmatic solutions” as long as they do not circumvent the EIA Directive. She asked:

“34. What should be done, however, if it is recognised only after a project has been realised that its effects on the environment ought to have been assessed? The arguments of Corridonia … are premised perhaps on the tacit expectation that consent should no longer be given to the projects in question and that, therefore, the plants must be dismantled and removed.

35. Although that legal consequence is — at least in theory — possible, as a rule, it is unlikely to come into consideration. Following the realisation of the project, admittedly, the error of procedure can no longer be fully rectified … however, the consequences of that error can still be mitigated to a considerable extent …”.

138. Kokott AG recognised that the competent authorities of a Member State must take, of their remedial obligation and “within the sphere of their competence, all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment.”. She considered that such “measures include, subject to the limits laid down by the principle of procedural autonomy263 of the Member States, the revocation or suspension of a consent already granted, in order to carry out an assessment of the environmental effects of the project” However, she recognised also that the “possibility to revoke or suspend the consent” may be “precluded because it has already become final”. It seems that AquaPri,264 is to the same effect. Kokott AG went on to consider what might be done in that circumstance.

139. In my view, the references by Kokott AG to procedural autonomy and to a decision having become final are important and relevant here as:

Emphases added.

261 Carrownagowan Concern Group v An Bord Pleanála & FuturEnergy [2023] IEHC 579.

262 Joined Cases C-196/16 and C-197/16, Comune di Corridonia v Provincia di Macerata, Judgment of 26 July 2017, ECLI:EU:C:2017:589.

263 Emphasis added.

Case C-278/21 AquaPri, ECLI:EU:C:2022:864.

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• Ireland has, by s.50 PDA 2000, specified that revocation of a consent may be effected only by judicial review and within the applicable (extendable) time limit. Once immune from such challenge, the consent thereby (at latest) becomes “final” in the sense contemplated by Kokott AG.

• Even if in the present case (assuming for argument’s sake) later permission procedures should have remedied a failure of EIA in earlier permission procedures, the fact is that even the later permissions have become final in the sense contemplated by Kokott AG and s.50 PDA 2000 applies to them also.

140. Accordingly, I cannot see that reliance on the remedial obligation at EU law can avail the Applicants here against the Board and Laois CC. As against Booth, a private party, the question of its application does not even arise as the obligation lies on the State.

141. While I accept that it does not govern the post-2012 permissions, there is, however, a more fundamental objection to the Applicants’ reliance on the remedial obligation as relates to the earlier permissions. In 2012, in the s.261A procedure, the competent authority, Laois CC acting within its sphere of competence, explicitly considered whether remedial EIA and/or AA obligations arose and decided that they did not. That decision is also final in the sense contemplated by Kokott AG and s.50 PDA 2000 applies to it also.

142. Finally, I accept:

• The argument that Carrownagowan265 is authority that it is a precondition to a judicial remedy against a State organ for failure to meet a remedial obligation that the applicant for judicial remedy has called on the State organ to meet its remedial obligation.

• That it is only on failure to respond lawfully to such a call that the question of judicial remedy properly arises.

• That there is no evidence of such calls in this case.

I would add that in any event, s.160 is not the proper procedural means of pursuing such a judicial remedy.

MALONE V GCHL - 2025

143. Laois CC and the Board relied appreciably on the recent decision of Bradley J in Malone v GHCL266 and so it deserves particular attention. Mr Malone was the applicant in those proceedings also.

144. They were s.160 proceedings seeking to restrain quarrying and alleged waste disposal in a quarry other than that at issue before me. Unlike here, Mr Malone also sought relief under s.57 WMA 1996.267 The

265 [2023] IEHC 579 §§105 – 107.

266 [2024] IEHC 336, [2024] 5 JIC 1607 – as it happens the applicant in the present case was also the applicant in that case.

Waste Management Act 1996, as amended.

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EPA was a co-respondent. A fundamental aspect of Mr Malone's submission was that EU law required that a planning consent precede a waste licence application. Mr Malone sought an order restraining the EPA from deciding GCHL’s waste licence application before GCHL had submitted a rEIAR268 and rNIS269 to the Board seeking a substitute consent.270 Notably, Mr Malone’s arguments in his GHCL case appreciably resembled to those he makes now.271 Inter alia, he relied, as he does here, on alleged failures to carry EU environmental laws into effect, on Art. 19 TEU as it requires provision of effective remedies and on the inherent and full original jurisdiction of the High Court.

145. The EPA motioned to strike out or dismiss the case against it, pursuant to the High Court's inherent jurisdiction and/or O.19, r.28 RSC, as bound to fail, improperly constituted and lacking jurisdictional basis. Relying on the inherent jurisdiction, Bradley J both struck out the s.160 motion as against the EPA and dismissed the claim against it, as:

• improperly constituted and lacking jurisdictional basis having regard to s.160 PDA 2000 and ss. 43(5)272 and 57 WMA 1996; and

• bound to fail and an abuse of process.

146. Bradley J was satisfied that, apart from O.19, r.28 RSC 1986, the High Court has a free-standing and inherent jurisdiction to determine on a motion, as a jurisdictional pre-requisite or preliminary question, whether claims for reliefs were improperly constituted as having no jurisdictional basis in s.160 PDA 2000 or s.57 WMA 1996 or were bound to fail and so were an abuse of process. He cited Keohane273 and, by analogy, Morris.274 Accordingly, he left over the question whether O.19, r.28 applies to proceedings brought pursuant to s.160 motions or s.57 motions.

147. Bradley J approximated what are commonly referred to as “statutory injunctions” pursuant to s.160 PDA 2000 and s.57 WMA 1996 as limited to “regulatory enforcement” – in the case of s.160, against

‘unauthorised development’ and in the case of s.57, against unlawful “holding, recovery or disposal of waste”.

The EPA was accused of neither. He considered that neither “statutory jurisdiction” provided a mechanism to

268 Remedial Environmental Impact Assessment Report.

269 Remedial Natura Impact Statement – to inform a remedial AA.

270 In accordance with s.177C PDA 2000.

271 He averred: “(44) I say that the jurisdiction to prohibit the second named Respondent from processing the waste licence application is its failure to

implement the following legislation:

• The CJEU judgments in C-50/09, C-215/06 and C-494/01;

• Statutes enacted by the Oireachtas, pursuant to Article 15.2.1 of the Constitution of Ireland to give effect [to] [sic.] the CJEU judgments in Cases-

50/09, 215/06, C-494/01 and Article 6 of the Aarhus Convention;

• S.87(1B) of the EPA Act 1992, as amended, s.42(1B) of the Waste Management Act 1996, as amended and Part XA, s. 177 and s. 261A in the 2000 Act;

• The EIA and AA screening in compliance with Chapter 2 of Part 2 of the Planning and Development (Housing) and Residential Tenancies Act 2016;

• The European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018;

• The Irish Supreme Court judgements in An Taisce v McTigue Quarries Ltd & Ors [2018] IESC 54, which upheld the CJEU judgement in Case C-215/06;

• The High Court case Heart [sic.] Peat Ltd v Environmental Protection Agency [2022] IEHC 148, which has ruled on many of the issues raised by Mr

Rory Ferguson in his grounding Affidavit.” Mr Malone also invoked McCoy v Shillelagh Quarries Ltd [2015] IEHC 838.

272 S.43(5) provides, in part: (a) A person shall not question the validity of a decision of the Agency on an application made to it for the grant of a waste

licence, or in consequence of a review conducted by it of such a licence, otherwise than by way of an application for judicial review under Order 84 of

the Rules of the Superior Courts (SI No. 15 of 1986) (hereafter in this subsection referred to as “the Order”).

(b) An application for leave to apply for judicial review under the Order in respect of a decision referred to in paragraph (a) shall -

(i) be made within the period of 2 months commencing on the date on which the decision is given,

(ii) be made by motion …”.

273 Keohane v Hynes [2014] IESC 66.

274 Morris v Ireland & Ors [2022] IEHC 472.

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restrain the EPA from deciding the Waste Licence application. In that respect, Mr Malone’s motion was entirely misconceived.

148. Looking at the matter another way, Bradley J saw Mr Malone’s motion in that case as, in effect, seeking the public law remedy of prohibition of the EPA from processing GCHL’s waste licence application. Prohibition is ordinarily sought in judicial review under O.84 RSC. Bradley J considered that Mr Malone had misconstrued the nature of the “statutory injunction” applications under s.160 PDA 2000 Act and s.57 WMA 1996, as providing a jurisdictional basis for seeking to prohibit or restrain the statutory process of seeking a waste licence or to prohibit the EPA from carrying out its statutory duties. Neither section provided such a jurisdiction. The correct procedure to such an end was to invoke the procedurally exclusive judicial review processes under O.84 RSC as prescribed by s.43(5) WMA 1996 and s.50 PDA 2000. Those procedures were not to be circumvented via s.57 WMA 1996 and s.160 PDA 2000. In this context, Bradley J cited, inter alia, Krikke275 and Narconon Trust.276

149. Bradley J saw Mr Malone’s motion as invalid as a collateral challenge to the waste licence process. And even assuming substantive merit in prohibition of decision of the waste licence application before substitute consent had been granted, he considered that “this cannot be achieved” in a s.160 or s.57 application.277 Bradley J cited Morris as to collateral challenge and procedural exclusivity. Notably, in assuming those merits, Bradley J was, in this remark confining himself to an avowedly procedural basis for striking out the claim against the EPA. In short, procedures matter and in certain circumstances failure to adhere to them can lose otherwise sound cases. The contrary view is based on “the erroneous belief that every decision, no matter its provenance, nature or form, is always capable of being appealed or at least reviewed”.278

McTigue Quarries - 2018 & Harte Peat – 2022

150. As has been seen, Mr Malone cites various decisions of the CJEU, that of the Supreme Court in McTigue Quarries279 and that of the High Court in Harte Peat280 for the proposition that planning permissions granted without prior EIAs, where EIA is required, are invalid. This proposition is superficially attractive and, considered loosely, could be thought broadly correct. But on close examination it will be found to go too far.

151. In light of the EU law principles discussed in Narconon, Krikke and Malone v GCHL, and of s.50(2) PDA 2000, the correct proposition is that a planning permission granted without prior EIA, where EIA is required, is nonetheless valid unless invalidated and quashed for want of EIA in the prescribed proceedings (i.e. judicial

275 Krikke & Ors v Barranafaddock Sustainable Electricity Ltd [2022] IESC 41 per Hogan J §22 and per Woulfe J §§65 - 86.

276 Narconon Trust v An Bord Pleanála [2021] IECA 307 per Costello J §§41-51 and 67-68 and Collins J §§1–8.

§80.

278 Humphreys J, Ballyboden Tidy Towns Group v An Bord Pleanála & Ardstone Homes [No 2] [2025] IEHC 277.

279 An Taisce v McTigue Quarries Ltd [2018] IESC 54, [2019] 1 ILRM 118.

280 Harte Peat Ltd v EPA, Ireland & AG [2022] IEHC 148. The complexities of the Harte Peat litigation need not be considered here save to note that the

Court of Appeal later considered the matter – see [2024] IECA 202, [2024] 7 JIC 3103.

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review) brought in time (i.e. within the relevant time limit or any extension thereof). Notably, and on this account, Mr Malone failed in Malone v GCHL despite citing Harte Peat.

REFERENCE TO CJEU

152. As stated, in his written submissions281 at the hearing282 Mr Malone suggested a reference to the CJEU pursuant to Art 267 TFEU. I have set out his 5 proposed questions in an appendix to this judgment.

153. The High Court is not, for the purposes of Art 267 TFEU and the CILFIT doctrine,283 a court of last resort - against whose decisions there is no judicial remedy under national law - see Lyckeskog,284 Kubera,285 Sony286 and Ó Conbhuí.287 In Ó Conbhuí, the Court of Appeal took that view of its own status specifically in the context of the Supreme Court’s power to grant leave to appeal (a reasoning which also applies to Supreme Court’s power to grant “leapfrog” leave to appeal directly to it from the High Court) and cited Dowling288 as instancing the Supreme Court’s bearing in mind, in determining an application for leave to appeal to it, any possibility of the necessity of a reference to the CJEU. As the High Court is not a court of last resort, I am entitled to interpret EU law without being obliged to make a reference. I have a discretion whether to refer questions to the CJEU and am not obliged to refer merely because a relevant question of EU law is not acte claire or acte éclairé.

154. In that context, I consider that I should not refer to the CJEU the questions posed by Mr Malone. Question 1 is premised on a misconceived view that access to justice to vindicate any asserted EU law obligation is an absolute right. That view ignores the procedural autonomy of Member States and the ample authority that the principles of effectiveness and equivalence do not invalidate the statutory procedural exclusivity, or the time limits, imposed by s.50 PDA 2000 as applicable to the judicial review provided in Irish law as the remedy effective to challenge the validity of administrative law decisions - even where the application of EU law is at issue. I also consider that Malone289 is authority for the inherent jurisdiction to decide motions to dismiss s.160 proceedings.

155. Question 2 need not be referred for essentially the same reasons, and also as the proceedings before the EU Commission, the European Parliament and the Aarhus Convention Compliance Committee are irrelevant to present concerns. The answer to Question 3, in its own terms, is clearly “yes” – but in its application to the present case, its concluding premise is a misconceived assertion of an unlawful deprival of

281 Entitled “Oral submission for Hearing in Case 2025-17 MCA”.

282 And also by way of exhibit to affidavit.

283 Case 238/81 CILFIT v Ministero della Sanita [1983] ECR 3415.

284 Case C-99/00 Lyckeskog [2000] ECR I-4839.

285 Case C-144/23 Kubera Trgovanje S Hrano in Pijaco D.O.O. v Slovenia [2025] 2 CMLR 14.

286 Sony Music v UPC Communications [2016] IECA 231, [2018] 2 IR 623. While it decided that the Court of Appeal was not a court of last resort, a

fortiori that conclusion must apply to the High Court.

287 Byrne (a minor) v Ó Conbhuí [2018] IECA 57. While it decided that the Court of Appeal was not a court of last resort, a fortiori that conclusion must

apply to the High Court.

288 Dowling v Minister for Finance [2016] IESCDET 40.

[2024] IEHC 336, [2024] 5 JIC 1607 – as it happens the applicant in the present case was also the applicant in that case.

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access to justice. The answer to Question 4 is clearly “yes” (save for the reference to the Aarhus Convention which is not directly effective in Irish law) but, for the reasons I have indicated, no question of breach of the instanced EU law principles arises in this case. Question 5 is irrelevant given the s.261A declaration which is long-since immune from challenge.

CONCLUSIONS

156. As to the legality of operations on Site, it seems to me that the Applicants’ case ultimately rests on the following propositions:

a. The Permissions are invalid as in breach of EU law – notably EU Law as to EIA and AA – such that operations on Site are unauthorised.

b. Permissions PL95/300 and PL98/780 are expired - such that operations on Site are unauthorised.

c. It being agreed that there is no permission for waste activities on-Site, waste activities have occurred and are occurring by way of unauthorised development within, specifically, the planning code.

d. If much less clearly, that unauthorised developments occurred or are occurring on Site, other than developments within the scope of the Permissions and other than waste activities.

ABSENCE OF EXPLANATION OF FAILURE TO SEEK JUDICIAL REVIEW

157. Both Applicants clearly have had long-standing and repeated involvement in the planning history of the Site – not least as objectors to planning applications. Their basic allegations now are of the invalidity of an EIA done in 1996 and the expiry of the first two permissions in 2001 and 2003 and of the allegedly consequent invalidity of every permission thereafter. Strikingly, they nowhere seek to explain – much less excuse - their failure to seek judicial review quashing any of the Permissions or the s.231A Determination of 2012, much less again their failure to do so within applicable time limits. This consideration told against the applicants in Carrownagowan.290

PERMISSIONS INVALID AS IN BREACH OF EU LAW?

158. In my view, the case that the Permissions are invalid as in breach of EU law, such that operations onsite are unauthorised, has no reasonable chance of succeeding. To permit such a case to be made in s.160 proceedings would be in substance to permit an impermissible collateral challenge to those permissions in breach of s.50 PDA 2000 which requires that such challenges be made via judicial review and in time. They

Carrownagowan v ABP & FutureEnergy [2024] IECA 234, [2024] 9 JIC 2501, §54

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were not challenged in judicial review and are long-since immune from such challenge. Put otherwise and in terms of s.50 PDA 2000, the Applicants may not now or by s.160 proceedings seek to “question the validity” of the Permissions. Importantly, that is so even if the Applicants are assumed, for the sake of argument, to be substantively correct in their assertion that the Permissions were granted in breach of EU law. For reasons I have set out above, this position is in accordance with EU law and principles as to effective remedies, procedural autonomy, effectiveness and equivalence.

The case may not proceed on any basis which involves questioning the validity of the Permissions.

159. However, the matter goes somewhat further: as to the application thereto of s.50 PDA 2000, the s.261A decision of 2012 is in the same position as the Permissions. It determined that the Quarry was not in breach of EIA or Habitats law. It may have been correct or incorrect in that regard, but as s.50 PDA 2000 applies to it and as it was not challenged in judicial review in time, it is long since immune from such challenge.

The case may not proceed on any basis which involves asserting breach of EIA law or Habitats law at any time prior to 2012. That is not to be interpreted as permitting questioning the validity of the Permissions postdating 2012 – to which the broader prohibition stated in the next preceding paragraph in any event applies.

HAVE PERMISSIONS PL95/300 AND PL98/780 EXPIRED?

160. These issues turn on the duration of the two earliest Permissions. Permission PL95/300 issued to Mr Butler for two, arguably three, developments – retention of a concrete plant and retention and extension of the Quarry.

Concrete Plant

161. In my view, the planning status of the use of the retained concrete plant was inevitably unaffected by any expiry of Permission PL95/300. It is trite law that once a development of a permitted structure has occurred within the period of the permission – which is ex hypothesi so in the case of a retention permission

– and absent a condition requiring cesser of its use after a stated period, its continued use after the expiry of the permission, for the purpose implicitly or explicitly permitted by the permission, is not unauthorised development. That is so because such continued use is not development at all. Use is not development: only change of use is development.

162. Thus, in my view and whether Permission PL95/300 has expired or not, continued use of the concrete plant, as permitted by Permission PL95/300, is clearly not unauthorised development and the case cannot proceed on the basis of an allegation that, by expiry of Permission PL95/300, it is unauthorised development.

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Quarrying

163. The expiry of Permission PL95/300 as to quarrying activity seems to me more problematic. As intimated above, it is at very least arguable that “each time a shovelful of material is extracted this constitutes the carrying out of development”291 - that continuing and future extraction of sand and gravel is a matter of ongoing works, the performance of which is development.

164. On that arguable view:

• The continued use after expiry rationale stated above as to permitted structures does not apply to quarrying works - which may continue only while the Permission PL95/300 subsists and is unauthorised after its expiry.

• And, though the questions are undoubtedly connected, the real question, ultimately, is not what duration of permission for quarrying did Mr Butler seek in 1995 but is what duration did Laois CC grant?

165. I do not have Mr Butler’s planning application. But I have a copy of his EIS envisaging phased quarrying and land restoration over 30 years. I accept that Condition 1 of Permission PL95/300, requiring development in accordance with the plans and particulars submitted “except where conditions hereunder specify otherwise”, encompasses the content of the EIA. I accept that no conditions thereunder address the duration of the permission. I also suspect that the common sense and practicality of the situation, as it would have been understood by all concerned in 1996, including the “XJS reader”292 of the Permission, may have favoured a duration of quarrying appreciably longer than 5 years. I sympathise with the argument that the “Note” on the permission as to its duration was non-curial and was merely a standard reference to the default statutory duration of a permission.

166. However, and without purporting to be exhaustive, there are appreciable counter-arguments.

• The first is that, whether the Note was “standard” or not, Laois CC must as a matter of law be presumed to have deliberately included it in this permission. On this view, describing it, in effect, as boilerplate does not affect the matter. For that matter Condition 1, on which Booth places so much emphasis, might also on one view, be described as boilerplate.

• The second argument is that there must be an appreciable public interest in a public document such as a planning permission, on the terms of which the public will rely (in this case at 29 years remove from its factual and procedural matrix), being taken to mean what it clearly says on the tin. It explicitly and simply says that “(t)he permission herein granted shall, on the expiration of the period of 5 years beginning on the date of the granting of permission, cease to have effect …”.293

• Third, it may also be arguable that specific and particular text on the face of the permission, stipulating its duration, outweighs as to such duration any effect of the general terms of Condition 1 - generalia

291 Simons (Browne) §16-57, Citing Thomas David (Porthcawl). See above.

292 In Re XJS Investments Ltd [1986] IR 750 – i.e. interpretation as if by an informed intelligent layperson.

Emphases added.

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specialibus non derogant (see Four Districts294 as to the application of that maxim to the interpretation of development plans).

• Fourth, s.41 PDA 2000 requires that where a planning authority intends a duration of a permission other than the default 5-years, it must “specify the period during which the permission is to have effect”. It may be arguable whether Condition 1 and the EIS together suffice to satisfy that requirement of specification.

It may further be arguable that reading them together with the “Note” is inconsistent with satisfaction of that requirement of specification. At least in current practice, the specification of the period of a permission is done by explicit planning condition – though practice may perhaps have differed in 1996.

167. I do not think it would be helpful for me to express a view as to which of these competing arguments may prevail. It suffices to recall that the cases are clear that the jurisdiction to dismiss is not exercisable merely if the plaintiff's case is very weak and is likely to be successfully defended and that not all matters of interpretation of documents are proper to decision on a motion to dismiss.

168. As to Mr Booth’s assertion that the more recent permissions record that the Quarry has a pre-1963 established user, while I do not rule against it, I am not prepared to decide in its favour on a motion to dismiss. It potentially raises complex issues – not least in the context of a permission which, as long ago as 1996, envisaged the retention of merely a 2 hectare quarry and its expansion to 6.7 hectares. The Laois CC s.261A process did not view the matter as a “pre-63” case and regarded the 1996 permission as the consideration most important to its 2012 decision.

169. I note that by s.160(6)(ab) PDA 2000, no limitation period applies to s.160 proceedings seeking the cesser of unauthorised quarrying.

170. I consider that, as to quarrying activity, the case may proceed as to the issue of the expiry of Permission PL95/300 and whether, in light of the resolution of that issue, quarrying on Site is unauthorised.

Office Block

171. As has been seen, Permission PL98/780 was for erection of an office ancillary to the concrete plant. That primary use remains authorised. For that reason and as continued use of a permitted building after expiry of its permission is not development one would conclude, but for Condition 11 of Permission PL98/780, that the case cannot proceed on the basis of an allegation that by expiry of Permission PL98/780 the office or its use as such is unauthorised development.

Four Districts Woodland Habitat Group v An Bord Pleanála [2023] IEHC 335. Also, Flannery v ABP [2022] IEHC 83.

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172. As has been seen, Condition 11 of Permission PL98/780 requires that the office building be removed when quarrying ceases. As I have decided that the case will proceed on the footing of an argument that permission to quarry has expired, it would seem to follow that an argument could be made that, since such expiry, Condition 11 has required removal of the office building or, alternatively, would require such removal in the event quarrying were in fact to cease on foot of an order in these proceedings.

173. However, the Applicants have not intimated an amendment of their proceedings to rely on Condition

11 of Permission PL98/780. As has been seen, authority differs as to whether that is a prerequisite to permitting such a case to proceed. On balance, I consider that amendment to include an entirely new basis for impugning the planning status of the office block would, in the circumstances of this case, exceed a proper exercise of any discretion in the court, in considering the present motions, to envisage an amendment which the Applicants have not envisaged. I am to some extent influenced in this respect by my perception that the office building is, per se, a somewhat peripheral matter in the case and there is no suggestion that its use or continued existence has any substantive planning or environmental significance.

OTHER UNAUTHORISED DEVELOPMENT?

174. As has been seen, the ONoM asserts unauthorised development which “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”. However, other than as to waste activities, the Applicants’ case has not been advanced on a basis that unauthorised development outside the scope of the Permissions has occurred on Site.

WASTE ACTIVITIES ON SITE?

175. It is agreed that there is no planning permission for waste activities on Site. Any such activities, if development, would be unauthorised development within, specifically, the planning code. As to whether there are or have been waste activities on Site, there is a great conflict of evidence – not least as to the proper interpretation of Mr McEvoy’s photographs. I think the Applicants’ evidence weak. Even if the photographs do depict waste and waste activity, questions would arise of degree and whether any waste seen was waste generated by and incidental to authorised operations on Site or was waste imported to the Site. Even then, any legal significance of that distinction would require elucidation. The outcome of the 2012 enforcement investigation may tell considerably against the possibility that, even if not evidence in itself, the exhibited 2005 affidavit of Mr Fitzpatrick presages the availability at the substantive hearing of evidence of historic asbestos deposition. Any such historic activity would seem to be long since immune from s.160 enforcement and there is no claim for relief under the WMA 1996. While such a claim might have been included in the ONoM, I do not think I should envisage the prospect of its amendment in such a fundamental respect as informing my view of the motions to dismiss.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

EVIDENTIAL POSITION – A NOTE

176. As I hope will be apparent from the foregoing, and as to the weight evidence tendered to date by Mr Malone and Mr McEvoy, to the extent I am permitting the s.160 proceedings to proceed, I am not to be understood as suggesting that the evidence now to hand will suffice for them to succeed at a full hearing.

POSITIONS OF BOARD & LAOIS CC

177. I generally accept the submissions made for the Board and Laois CC. S.160 PDA 2000 provides a specific, focussed, circumscribed and (generally) summary procedure for the grant of what are colloquially but accurately called planning injunctions to restrain and/or remediate unauthorised development. I bear in mind the decision of Hogan J in Fortune (No.4)295 in concluding that any declaratory relief granted in s.160 proceedings must be ancillary to that purpose to restrain and/or remediate unauthorised development.

178. Such injunctions may only be directed to persons who are owners or occupiers of the lands in question or are otherwise able, as a matter of private law right, to bring about the cesser and/or remediation of such unauthorised development. Only those at least arguably identifiable as such persons are proper respondents to s.160 proceedings.

179. The Applicants do not allege that the Board and/or Laois CC:

• have effected or are likely to effect unauthorised development on the Site; or

• are in a position, as owners or occupiers of the Site or as persons otherwise able, as a matter of private law right, to bring about the cesser and/or remediation of such unauthorised development on the Site. The Board and Laois CC are not even arguably identifiable as such persons and so they are not proper respondents to these s.160 proceedings.

180. It is therefore not apparent that there is any prospect of the granting against the Board and Laois CC of any order, in terms of s.160 PDA 2000, “to do or not to do, or to cease to do, … anything … to ensure, ... that the unauthorised development is not carried out or continued; that any land is restored to its condition prior to the commencement of any unauthorised development;” or that “any development is carried out in conformity with” any planning permissions or condition thereof.

181. While the Applicants have not argued the point, I think I should note in their favour that Laois CC has statutory powers of enforcement in respect of unauthorised development. However, in my view, s.160 PDA 2000 is not a proper means of seeking to compel a planning authority to exercise its statutory powers of enforcement – that would be classically a matter for mandamus in judicial review.

Wicklow County Council v Fortune (No.4) [2014] IEHC 267.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

182. Declarations of a broad, general and nominally abstract kind are sought against the Board and Laois CC. The only factual matrix proffered to support those claims and the only substantive allegations against the Board and Laois CC relate their alleged failures to their decisions to grant the Permissions. In substance, and in seeking such declarations, the Applicants seek by these s.160 proceedings to question the validity of the Permissions and also the validity of Laois CC’s decision of 2012 pursuant to s.261A PDA 2000. I have explained above why this is impermissible as collateral challenge and in breach of the procedural exclusivity and time limits for which s.50 PDA 2000 provides. On this basis also, no claim for damages or compensation can be made against the Board and/or Laois CC. What the Applicants want of them cannot be obtained in s.160 proceedings.

183. As I have explained above, there is no basis for granting a judicial remedy against the Board and/or Laois CC for failure to meet any remedial obligation at EU law. First there is a valid and unchallenged s.261A

decision that, as of 2012, no such remedial obligation existed. Second there has been no call on the Board and/or Laois CC to meet such a remedial obligation such as would ground a claim for a judicial remedy. Third and in any event, s.160 proceedings are not the proper vehicle for such a claim.

184. On the foregoing bases the motions brought by the Board and Laois CC succeed. The proceedings against them are improperly constituted, lack jurisdictional basis, are bound to fail and are an abuse of process.

185. However, to the extent that the proceedings will survive against Booth and as:

• Laois CC is the planning authority responsible for planning enforcement in the area,

• Its views as planning authority are recognised in the caselaw as relevant to any decision as to grant, refusal or terms of discretionary relief pursuant to s.160,

• Its planners have clearly had long involvement with the Site, I propose to retain Laois CC as a Notice Party in the proceedings in the expectation of its assisting the court. However, I will hear further argument whether that course is appropriate if any party thinks such argument desirable.

DAMAGES/COMPENSATION

186. Given what I have described as the specific, focussed, circumscribed and (generally) summary nature

of s.160 proceedings, I am satisfied that Browne296 is correct in citing Ellis297 and Centz298 to the effect that an

applicant for s.160 relief cannot recover damages in such proceedings. On that basis, the claim for damages or compensation in these proceedings must also be struck out as improperly constituted, lacking jurisdictional basis, bound to fail and an abuse of process.

296 Simons on Planning Law, 3rd ed’n §11-436.

297 Ellis v Nolan, unreported, High Court, McWilliam J, 6 May 1983.

Waterford City and County Council v Centz Retail Holdings Ltd [2020] IEHC 540.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

ENFORCEMENT OF THE 2009 COMPROMISE

187. I should make clear that, while it is understandable that, as part of the narrative, the Applicants should have referred to the 2009 compromise and their allegation of its breach and while I note Booth’s denial of such breach, that compromise may not be enforced in these s.160 proceedings. That compromise and its alleged breach have no formal effect on the true question which arises in these proceedings – which is whether there has been, is or is likely to be unauthorised development on the Site.

JURISDICTION & ORDERS

188. As did Bradley J in Malone v GCHL, I proceed from the inherent jurisdiction of the Court to decide by motion whether a s.160 application may proceed to a full hearing. If needs be and given the assimilation and codification of the remedies recognised by Simons J in Mohan, I would also proceed from Order 19 r.28 RSC. I will hear the parties as to the form of order which follows from this judgment. I consider that I should not intimate a provisional costs order pending hearing from the parties in that regard.

189. In summary:

a. The proceedings will be struck out or dismissed as against the Board and Laois CC. I will hear the parties as to which order is appropriate.

b. Laois CC will be retained in the proceedings as a Notice Party only - subject to any further argument in that regard.

c. The proceedings may proceed against Booth but not on any basis which asserts:

o the invalidity of the Permissions or any of them;

o that the permitted concrete works and the office ancillary thereto are unauthorised development by reason of the expiry of any permission;

o that unauthorised development outside the scope of the Permissions has occurred on Site – other than waste activities;

o entitlement to damages or compensation.

o In those respects, the proceedings will be struck out or dismissed as against Booth. I will hear the parties as to which order is appropriate.

d. For the avoidance of doubt, the proceedings may proceed against Booth on the basis of allegations that:

o Permission PL95/300, only, has expired such that further quarrying is now unauthorised.

o Unauthorised development in the form of waste activities have occurred on Site.

e. For the avoidance of doubt, I record that the Applicants have not sought relief pursuant to the WMA 1996. This need not be recorded in the order.

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

f. The counter-motion will be dismissed.

Finally, I reiterate that this judgment, insofar as it permits the s.160 proceedings to proceed, in no way suggests that they are likely to succeed.

David Holland 23/6/25

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

APPENDIX – QUESTIONS PROPOSED BY MR MALONE FOR PRELIMINARY REFERENCE UNDER ARTICLE 267 TFEU

Question 1

In proceedings based on directly effective rights under Directives 2011/92/EU, 92/43/EEC, and 2003/35/EC, as well as Articles 9(3) and 9(4) of the Aarhus Convention and relevant CJEU judgments, must a national court conduct a preliminary legal assessment to determine: − whether the claims are arguable in law, − whether the issues raised are relevant to obligations under EU environmental law, and − whether the case falls within the scope of EU environmental law, prior to applying a domestic procedural rule such as Order 19, Rule 28 of the RSC, which allows for the set aside of proceedings on EU environmental law grounds to facilitate motions to strike out claims as frivolous, vexatious, or an abuse of process, if such application may hinder effective access to justice, before applying a domestic procedural rule, such as Order 19, Rule 28 of the RSC, which permits summary dismissal of EU law proceedings as frivolous, vexatious, or an abuse of process, where such dismissal may hinder the right to effective access to justice?

Question 2 In circumstances where: − all of the substantive issues raised in a national environmental enforcement action have previously been accepted by the European Commission and led to binding judgments of the CJEU, namely, Cases C-50/09, C-215/06, and C-494/01, − was part of the Public Participation issues that were the subject of international legal proceedings before the UNECE Aarhus Convention Compliance Committee (ACCC/C/2010/54), and − the same EU environmental substantive issues which are currently under investigation by the European Parliament (Petition No. 0203/2025) and under investigation by the European Commission under Ref:(2024) 1941.

must a national court, acting as a decentralised court of the European Union under Article 19(1) TEU, and having regard to Article 47 and 51 of the Charter, Articles 9(2), 9(3), and 9(4) of the Aarhus Convention, and the principle of effective judicial protection:

(a) refrain from applying a domestic procedural rule, such as Order 19, Rule 28 of the Irish Rules of the Superior Courts, to strike out discrete parts of an application (e.g., paragraphs 4–6) otherwise founded on enforceable rights under Union law,

(b) ensure that a preliminary legal assessment is carried out to determine whether the claims are arguable, relevant, and relevant to Union law, before any such procedural dismissal is permitted, and

(c) disapply any provision of national law, or interpret it in conformity with Union law, where it would otherwise result in the denial of access to justice for the enforcement of established obligations under Union environmental law?

Malone & McEvoy v Laois County Council, ABP & Booth [2025] IEHC 345

Question 3

Does Article 47 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article

51 of the Charter, Article 19(1) TEU, and Articles 9(3) and 9(4) of the Aarhus Convention, preclude a national court from striking out individual paragraphs of a pleading, such as paragraphs 4 to 6 of the Applicants’ Notice of Motion where those paragraphs are integrally linked to a single cause of action based on enforceable rights under EU environmental law, and where the effect would be to prevent or substantially hinder access to justice in environmental matters?

Question 4

Where a national procedural rule, such as Order 19, Rule 28 of the Irish Rules of the Superior Courts, is applied to dismiss claims based on Union environmental law without full substantive adjudication, do the principles of effectiveness and equivalence require: − that such rules be applied in a manner no more restrictive than the rules governing comparable claims based solely on national law; and − that they be disapplied or interpreted in conformity with EU environmental law, where their application would disproportionately interfere with rights protected under EU environmental law and the Aarhus Convention?

Question 5 In light of the judgment of the CJEU in Case C-215/06, does Article 6(3) of the Habitats Directive 92/43/EEC, together with Articles 2 and 5 of the Environmental Impact Assessment Directive 2011/92/EU, as amended by Directive 2014/52/EU, require that, where an unauthorised development is the subject of a substitute consent procedure under national law, the developer must submit to the competent authority (An Bord Pleanála):

− a Remedial Environmental Impact Assessment Report (rEIAR), and − a Remedial Natura Impact Statement (rNIS), in circumstances where the original project would have required, under EU environmental law, an environmental impact assessment and/or appropriate assessment prior to its authorisation?