High Court grants order for restoration report but dismisses other reliefs pending new judgment.

APPROVED

AN ARD-CHÚIRT

THE HIGH COURT

[2025] IEHC 397

Record No. 2023/94MCA

BETWEEN/

DAVID MALONE

APPLICANT

-AND-

GCHL LIMITED

FIRST NAMED RESPONDENT

-AND-

ENVIRONMENTAL PROTECTION AGENCY

SECOND NAMED RESPONDENT

-AND-

KILDARE COUNTY COUNCIL

FIRST NAMED NOTICE PARTY

AND

BALYNA ENVIRONMENTAL ACTION GROUP

SECOND NAMED NOTICE PARTY

(No. 3)

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

INTRODUCTION ............................................................................................................... 3 Preliminary ....................................................................................................................... 3 ORIGINATING NOTICE OF MOTION ......................................................................... 5 Notice of Motion (after first judgment) ......................................................................... 5 AMENDED NOTICE OF MOTION ................................................................................. 7 DISCUSSION & DECISION............................................................................................ 11 Restoration Report ........................................................................................................ 13 Directions ........................................................................................................................ 18 The position of the EPA................................................................................................. 19 Application to join the Attorney General as a notice party ....................................... 21

CONCLUSION .................................................................................................................. 26 PROPOSED ORDER ........................................................................................................ 27

INTRODUCTION

Preliminary

1. Mr. Malone is a litigant in person who is supported by the second named Notice Party (“BEAG”), in proceedings which he has brought seeking reliefs pursuant to section 160 of the Planning and Development Act 2000, as amended (“the 2000 Act”) and section 57 of the Waste Management Act 1996, as amended (“the 1996 Act”) in relation to the former Ballinderry quarry pit operated by the Respondent, GCHL Ltd (“GCHL”).

2. The site is a worked out sand and gravel pit and it is proposed to restore the quarry pit by the use of, inter alia, imported wastes, which requires GCHL to apply, inter alia, for a Waste Licence from the Environmental Protection Agency (“the Agency”), which it did on 2nd June 2018.

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

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

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

“An Order prohibiting the second named Respondent processing

the waste licence application Ref: W0298-01 prior to the first

named Respondent submitting a Remedial Environmental Impact

Assessment Report and Remedial Natura Impact Statement to An

Bord Pleanála seeking substitute to consent in accordance with

section 177C (1) [of the Planning and Development Act 2000, as

amended]”).

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

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

ORIGINATING NOTICE OF MOTION

Notice of Motion (after first judgment)

8. Consequent upon the decision in Malone v GCHL Ltd & The EPA & Ors (No.1), the reliefs which are now set out in the Originating Notice of Motion (dated 30th March 2023”) are as follows:

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

(2) an order for the first named Respondent their successors and

assigns to prohibit any further unauthorised disposal of waste at the Ballinderry quarry, Carbury, County Kildare pending the first named Respondent being in receipt of a waste licence from the second named Respondent in accordance with Section 40 of the Waste Management Act 1996 as amended;

(3) an order for the first named Respondent to have the waste

illegally disposed at the Ballinderry quarry, Carbury, County

Kildare removed by an authorised contractor and shall be taken to a waste facility authorised to accept such waste materials;

(4) an order compelling the first named Respondent to return the

Ballinderry quarry, Carbury, County Kildare to its previous

condition prior to the unauthorised developments taking place as a result of a breach of condition 4 of An Bord Pleanála permission Ref: PL09.205039;

(5) [struck out (by order of the court)]

(6) Applicant costs;

(7) Any such further or other Order as this Honourable Court

deems meet.”

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

AMENDED NOTICE OF MOTION

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

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

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

(3) An Order, pursuant to Order 40, Rule 1 of the Rules of the Superior Courts, directing the First, Second and Third Named Respondents to file replying affidavits within 21 days, on the grounds that the Respondents have failed to file any replying affidavits in response to the Applicant’s Grounding Affidavit, served in March 2023.

(4) A Declaration that the Respondents have acted in contravention of Article 19(1) of the TEU, Article 47 of the Charter, Article 191 of the TFEU by failing to comply with binding judgments of the CJEU in cases C-50/09, C-215/06, C-494/01. This failure constitutes a breach of the legislative obligations arising from measures transposed into Irish law under Section 3 of the European Communities Act 1972, which gave binding effect to these judgments. The Respondents’ actions undermine compliance with EU law and the principles of effective legal protection and environmental protection enshrined in the Treaties.

(5) An Order directing the third named Respondent to prepare and submit, within one month, a report for restoration of the Ballinderry site to its original state, before the unauthorised developments. This report must include a comprehensive account of all removal activities, including the methodologies employed, evidence of compliance with EU environmental standards, and verification by certified contractors. The report shall be submitted to the Court and verified by an independent environmental expert to ensure compliance with the EIA Directive 2014/52 EU, the Habitats Directive (92/43/EEC), the Waste Framework Directive 2008/98/EC, as amended.

(6) A declaration that the Respondents have failed to implement the EIA Directive, Public Participation Directive, Habitats Directive, and Waste Framework, in clear and unequivocal breach of their binding obligations under EU law. These obligations arise under Article 288 of the TFEU, Articles 4(3), 17, 19(1) of the TEU, and Article 29.4.6 of the Irish Constitution, reflecting their direct incorporation into the Irish legal framework and their supremacy within the European Union legal order.

(7) An Order directing the second named Respondent to decide on the Waste Licence Application W0298-01 within one month, on the grounds that:

- The application has been pending for over five years, significantly exceeding reasonable administrative timeframes for such determinations;

- The prolonged delay compromises the effectiveness of judicial

oversight and planning regulations, violating the right to an

effective remedy under 19 (1) TEU and Article 47 of the Charter,

which obligate Member States to ensure effective legal protection in areas covered by EU law;

- The Second Named Respondent disregards legal requirements, such as Section 42(1B) of the Waste Management Act 1986 and Section 87(1C) of the EPA Act, which requires that when the applicant does not comply with subsection 87(1B), the Agency shall refuse to consider the application and shall inform the applicant accordingly.

- The Second Named Respondent’s failure to reach a determination undermines public participation in environmental decision-making, breaching the Aarhus Convention and Public Participation Directive 2003/35/EEC.

(8) 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 systems, that the Respondents, and any persons or entities acting on their behalf, pay damages to the Applicant, including but not limited to:

(i) Full reimbursement of all costs and expenses incurred by the

Respondents, 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 Applicant, 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.”

11. The parties who appeared on this application are: David Malone, the applicant; Mr. Malone is supported by BEAG (the second named Notice Party) and its secretary Michelle Kane, who appeared at the hearing of this application, made submissions and had filed on 23rd April 2025 a supporting Affidavit on behalf of BEAG in relation to Mr. Malone’s application; GCHL Limited (the respondent), Kildare County Council (the first named notice party), the Agency and the Attorney General were all separately represented by counsel and solicitor.

12. I will now address each of these matters (albeit not in the sequence set out in the Amended Notice of Motion).

DISCUSSION & DECISION

13. None of the parties to this application raised a procedural objection to Mr. Malone’s reference to Order 28 of the Rules of the Superior Courts 1986, as amended (“the RSC 1986”) in the first paragraph of the Amended Notice of Motion (filed on 10th February 2025), notwithstanding that the procedure for initiating this application seeking orders pursuant to the 1996 and 2000 Acts is by way of an originating Notice of Motion grounded on affidavit(s) rather than on pleadings. The settled caselaw on the amendment process under O. 28 of the RSC 1986 emphasises the desirability of adopting a flexible approach in order to clarify the real issues in dispute and to ensure justice is done: see Rossmore Properties Limited v ESB [2014] IEHC 159 (Birmingham J. (as he then was)) as applied recently in the judgment of O’Moore J. in Harrington v SRF Ltd [2025] IECA 137 (Costello P., Meenan J. and O’Moore J.).

14. In Malone v GCHL Ltd & The EPA & Ors (No.1) [2024] IEHC 336, I referred at paragraph 54 to a similar flexibility articulated by the Supreme Court (McKechnie J.) in Meath County Council v Murray & Anor [2017] IESC 25; [2018] 1 I.R. 189 when discussing the availability of hearing ‘a section 160’ application in a plenary format. In that case, McKechnie J. observed as follows at paragraph (35):

“(35) … Indeed, if necessary, as the court has a constitutional obligation to ensure fairness and fair procedures, and as the superior courts have an inherent right to regulate their own procedures, they can be asked at any point to put in place a regime by which those objectives can best be served (see O. 103, r. 6(a) of the Rules of the Superior Courts, and O. 56, r. 3(7)(a) of the Circuit Court Rules)

…

(38) Where serious complexity arises, it seems to me that whether section 160 is triggered by the issue of a motion and the procedure then suitably adapted so that the full ventilation of all issues can take place, or if a plenary summons should issue in the first instance, is purely a technical matter of procedural significance only. Accordingly, I believe that there is jurisdiction in all courts vested with authority to deal with section 160 applications to regulate their own procedures – in the case of the Circuit Court within the relevant statutory provisions and the rules of court – so as to render that procedure compliant with constitutional norms.

(39) In addition, it is difficult to see, in such circumstances, how any issue of law, no matter how complex, far reaching or significant it might be, cannot be adequately dealt with by way of submissions, written and oral, 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.”

15. Accordingly, by analogy, I adopt a similar flexible process to that reflected in the settled case law on the amendment process under O. 28 of the RSC 1986 in the consideration of Mr. Malone’s application and in seeking to clarify the real issues in dispute and to ensure justice is done. As set out later in the judgment, the parties will be afforded a full opportunity to file replying affidavits to the matters raised in this application by the applicant and the second named Notice Party.

Restoration Report

16. For the following reasons, I propose to allow Mr. Malone’s application to include or add the relief sought at paragraph (5) of the ‘Amended Notice of Motion’ (filed on 10th February 2025’) to the Originating Notice of Motion dated 30th March 2023 (which, consequent upon the judgment in Malone v GCHL Ltd & The EPA & Ors (No.1) [2024] IEHC 336, is now shorn of the initial paragraph (5) which had previously sought an order of prohibition against the Agency).

17. At the hearing before me, Mr. Malone clarified that the following relief was sought against the First Named Respondent, GCHL Limited:

“(5) An Order directing [GCHL Limited] to prepare and submit, within one month, a report for restoration of the Ballinderry site to its original state, before the unauthorised developments. This report must include a comprehensive account of all removal activities, including the methodologies employed, evidence of compliance with EU environmental standards, and verification by certified contractors. The report shall be submitted to the Court and verified by an independent environmental expert to ensure compliance with the EIA Directive 2014/52 EU, the Habitats Directive (92/43/EEC), the waste framework Directive 2008/98/EC, as amended.”

18. In acceding to the application of Mr. Malone (as supported by BEAG) to amend the Originating Notice of Motion to include this relief, I, of course, make no observation as to the strength or otherwise of the relief sought and GCHL Limited, Kildare County Council (and BEAG, if they so choose) will have an opportunity to address this and all of the orders sought in the Originating Notice of Motion brought pursuant to the 2000 Act and the 1996 Act.

19. In Malone v GCHL Ltd & The EPA & Ors (No.1) [2024] IEHC 336 (at paragraphs

(47) to (50)), I referred to the terms of section 160 of the 2000 Act and to the judgment of the Supreme Court in Meath County Council v Murray & Anor [2017] IESC 25; [2018] 1 I.R. 189, where McKechnie J. inter alia observed at paragraph

71 that “where successfully invoked, that provision now empowers inter alia the High Court … to make any order which it deems is necessary so that what “has been, is being or is likely” to be done is not only planning compliant, but also that the affected land is restored to the condition it was in prior to the unauthorised development being commenced, insofar as that can feasibly be done. Furthermore, for the avoidance of doubt, the section makes it clear that “restoration, reconstruction, removal, demolition, or alteration of any structure or other feature” is within the competence of the Court to so order.”

20. Similarly, in Malone v GCHL Ltd & The EPA & Ors (No.1) [2024] IEHC 336 (at paragraph (51)), I referred to section 57 of the 1996 Act which provides for the power of the High Court in relation to “the holding, recovery or disposal of waste” and has a similar structure to section 160 of the 2000 Act, providing inter alia as follows:

“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 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, and the High Court when considering the matter may make

such interim or interlocutory order as it considers

appropriate.

(3) An application for an order under this section may be made

whether or not there has been a prosecution for an offence under

this Act in relation to the activity concerned and shall not

prejudice the initiation of a prosecution for an offence under this Act in relation to the activity concerned.

(4) Without prejudice to the powers of the High Court to enforce

an order under this section, a person who fails to comply with an order under this section shall be guilty of an offence.”

21. If Mr. Malone was to succeed in his applications, either pursuant to the 1996 Act and/or the 2000 Act, the terms of the remedy which he now seeks to add (or such similar terms as a court may direct) in paragraph 5 of the ‘Amended Notice of Motion’ (filed on 10th February 2025) could follow from the 1996 Act and the 2000 Act and from the originating Notice of Motion.

22. Further, and by way of analogy, extensive litigation and orders of the High Court (and the Court of Appeal) were involved in the Brownfield v Wicklow County Council series of case, which included court orders directing the removal of waste, contaminated and potentially contaminated soil, and the remediation of a dump in Whitestown, County Wicklow. In Brownfield Restoration Ireland Ltd v Wicklow County Council (No. 8) [2023] IEHC 137, for example, the High Court approved the remediation plan in part and determined that the balance of the plan would await further steps including advices from a court-appointed expert if appointed; see also a summary of the history of this litigation in Brownfield Restoration Ireland Ltd v Wicklow County Council (No. 10) [2023] IEHC 712 and in particular the judgments of Humphreys J.

23. Some of the matters addressed in the ‘Amended Affidavit’ of Mr. Malone sworn on 28th January 2025, the ‘Legal Affidavit’ sworn on 22nd April 2025, the exhibits and correspondence and the supporting Affidavit of Michelle Kane, Secretary of the Balyna Environmental Action Group (BEAG), filed on 23rd April 2025, also include reference to issues relating to the substance of the reliefs sought in the 1996 Act and the 2000 Act. These matters will also form part of Mr. Malone’s case (supported by BEAG) in the substantive application. It is not a matter for me, however, on this application and at this juncture, and without any response being filed by GCHL Limited (or Kildare County Council), to offer any assessment of the strengths or weaknesses of those matters.

24. It is also important to point out that the substantive reliefs sought in the applications brought pursuant to the 2000 Act and the 1996 Act will, in due course, be dependent on the findings of the court hearing the application. Generally speaking, the statutory injunction processes under both the regulatory planning and waste management codes which are invoked in this application, require, for example, a finding of ‘unauthorised’ (or such similar) activity before consideration is given, in the exercise of judicial discretion, as to whether or not there will be a direction requiring any removal, restoration or remediation of a site. The respondent – GCHL Limited – has not had the opportunity to file any replying Affidavit at this point and is entitled to take issue, in due course, with all of the matters set out in the affidavits filed by Mr. Malone and the issues raised in the affidavit of Michelle Kane, secretary of BEAG and to raise matters, which it may seek to do, in opposing the reliefs sought.

Directions

25. The third claim by Mr. Malone is “[a]n order, pursuant to Order 40, rule 1 of the Superior Courts 1986 directing the first, second and third named respondents to file replying affidavits within 21 days on the grounds that the respondents have failed to file any replying affidavits in response to the applicant’s grounding affidavit served in March 2023”.

26. The seeking of this remedy appears to be based on a misunderstanding of previous court directions.

27. First, there are not, in fact, three respondents in this application. Arising from the

decision in Malone v GCHL Ltd (No. 1), the EPA (“the Agency”) was removed from the substantive application. Further, during the hearing of this application, Mr. Malone confirmed that none of the reliefs set out in the ‘Amended Notice of Motion’ were sought against Kildare County Council. This therefore leaves GCHL Ltd as the respondent.

28. Second, at a previous ‘for mention’ hearing before me, Mr. Keaney BL, for GCHL Ltd, explained that arising from the motion brought by the Agency (seeking the disallowing of the order of prohibition initially sought by Mr. Malone against it), the High Court (Hyland J.) had directed that GCHL Ltd were not required to file any replying affidavits until such time as Agency’s motion had been determined. I, in fact, continued that order until this application had also been determined. Accordingly, GCHL Ltd have been excused (or relieved) from filing any replying affidavits until these matters have been determined.

29. Whilst the order sought at paragraph (3) of the ‘Amended Notice of Motion’ is, therefore refused, the question of directions and the delivery of further affidavits from GCHL Ltd and (if they so choose), Kildare County Council as the first notice party and BEAG as the second notice party, and after that, any further replying affidavits from Mr. Malone, can be addressed by way of a directions hearing before the Non-Jury judge in charge of the list after delivery of this judgment and the making of final orders on this application.

The position of the EPA

30. As referred to at the beginning of this judgment, Mr. Malone had previously sought, as part of the suite of reliefs in the statutory enforcement actions brought against GCHL Ltd, to seek an additional relief and to prohibit the Agency from determining the Waste Licence application made to it by GCHL Ltd for the restoration of the quarry pit.

31. As stated, in Malone v GCHL Ltd & The EPA & Ors (No.1) [2024] IEHC 336, I disallowed that relief as against the Agency in these proceedings. I inter alia stated that the seeking of such an order of prohibition in the context of challenging a public law decision is achieved by way of an application for judicial review, the process of which is prescribed by O. 84 of the RSC 1986 and/or statutory provisions – such as section 43(5) of the 1996 Act – which incorporate O. 84 of the RSC 1986 and not in an application brought pursuant to section 160 of the 2000 Act and section 57 of the 1996 Act.

32. The effect of that decision was to release the Agency from these applications brought pursuant to the 2000 Act and 1996 Act.

33. Now, however, Mr. Malone seeks to bring the Agency back into these applications through the relief sought at paragraph 7 of the ‘Amended Notice of Motion’, where, for the reasons set out therein, Mr. Malone seeks an order from the High Court directing the Agency to decide on the Waste Licence application W0298-01 within one month. That relief is essentially an application for an order of mandamus against a public authority in the context of its statutory function.

34. In general, ex hypothesi, an application for the remedy of mandamus is normally sought by way of an application for judicial review consequent upon a mandamus letter being sent in the first instance, citing the relevant legislation and calling upon the public authority to make a decision within a suitable time frame and the public authority in question refusing to so.

35. Therefore, as with the decision in Malone v GCHL Ltd (No. 1), the relief sought at paragraph (7) of the Amended Notice of Motion is not an appropriate remedy to be sought in applications pursuant to section 160 of the 2000 Act and section 57 of the 1996 Act. I shall therefore refuse the relief sought at paragraph 7 of the Amended Notice of Motion filed on 10th February 2025 which is directed at the Agency. It is a matter for Mr. Malone as to whether or not he wishes to pursue such an application as against the Agency and I understand that the waste licence application W0298-01 remains pending. Again, I express no view on the strengths or weaknesses of such an application if it was brought.

Application to join the Attorney General as a notice party

36. The second relief in the Amended Notice of Motion (filed on 10th February 2025) seeks to join the Attorney General as a notice party to these applications, which again, are applications for ‘enforcement orders’ (sometimes referred to as ‘statutory injunctions’) under the planning and waste management codes.

37. Mr. Nathy Dunleavy SC, for the Attorney General, opposed this application and submitted that the Attorney’s position was summarised in the correspondence from the Chief State Solicitor dated 8th April 2025, as follows:

“We refer to the above mentioned proceedings and write to you on the instructions of the Attorney General, having received papers from the solicitors for Environmental Protection Agency on 1 April 2025.

We note that you have issued a notice of motion dated 10 February 2025. The main purpose of your application appears to be to amend your proceedings and the reliefs which you seek against the Respondents. We make no comment about the merits or otherwise of your substantive application.

We note, however, that the second relief sought in your notice of motion is an “Order joining the Attorney General as a Notice Party to these proceedings, given the constitutional and EU law implications of the case…” It is apparent from the papers that you are seeking to add claims of breaches of EU law by the Respondents. Insofar as you allege same against any or all of the Respondents, it is a matter for those parties to respond to any such claims. While you cite Order 60, rule 1 of the Rules of the Superior Courts and you make reference to Article 29.4.6 of the Constitution, we note that there is no question of constitutional validity being brought with respect to any legislation.

Having considered the papers, the Attorney General’s position is that it is not necessary that he be joined as a Notice Party to these proceedings and would not, in any event, be in a position to make submissions on matters to which he is a stranger. No relief is being sought against the Attorney General or the State in general. Where proceedings challenge actions of public or other bodies and make claims of breaches of EU law or the Constitution, such proceedings typically proceed without any joinder of the Attorney General. Any such joinder would create unnecessary cost.

Accordingly, we invite you to withdraw your application to join the Attorney General and to confirm, when this matter is next before the court on 10 April 2025, that you are no longer seeking to join the Attorney General to these proceedings.”

38. Mr Malone responded to the Chief State Solicitor by letter of reply dated 9th April 2025, as follows:

“I write in response to your letter of 8 April 2025 concerning the High Court Record No. 2023/94 MCA proceedings, in which I have applied to amend my pleadings to join the Attorney General as a notice party. Regrettably, your letter declines participation without addressing the following substantive legal basis for the Attorney General’s joinder, and I must respectfully challenge this position.

Constitutional obligations under Article 34.5.4 and 29.4.6

As you know, Article 34.5.4º of Bunreacht na hÉireann confers

upon the Attorney General an express right to be heard in all

proceedings, raising the validity of any law. These proceedings

clearly raise such constitutional issues, particularly in respect of:-

- The constitutional obligation under Article 29.4.6 to comply with binding acts of the EU institutions and the supremacy of EU law;

- The legal effect of CJEU judgments in cases C-30/09, C-215/06,

and C-494/01; and

- The failure to transpose and implement EU environmental

legislation, including the EIA, Habitats, Participation

Directives and Waste Framework Directive.

The Applicant has explicitly relied on the constitutional

architecture governing EU law implementation, including its

judicial enforcement. The State’s response, particularly from the Attorney General, cannot be purely discretionary in this context.

Duties arising under EU law

Under Article 19 (1) TEU and Article 47 of the Charter of

Fundamental Rights of the European Union, Member States are

obliged to ensure effective judicial protection in all fields covered by EU law. Where a constitutional and EU law interface is in question, as it clearly is here, the Attorney General's participation is not only warranted, but institutionally expected.

The repeated refusal to participate, including proceedings (2025- 17) MCA raising similar issues, risks a systemic failure to safeguard effective remedies under EU law, contrary to settled CJEU case law Associação Sindical dos Juízes Portugueses, (C- 64/16).

Public interest and institutional responsibility

These proceedings concern the enforcement of binding EU legal

obligations in the public interest, including the implementation of final judgments of the Court of Justice of the European Union. They are of direct constitutional and legal significance for the State, and for the coherence of Ireland’s environmental law with its EU obligations.

Accordingly, I respectfully ask the Attorney General reconsider his position and confirm whether

- He accepts that these proceedings raise a constitutional issue,

- He disputes the interpretation of Article 29.4.6 or the

application of Article 19 (1) TEU and Article 47 of the Charter,

- He intends to be represented at the upcoming motion hearing,

and

- If not, what legal basis is used to define participation, despite the implication of constitutional issues and express service in accordance with Order 60 RSC.

If no substantive reply is received, this correspondence will be

placed before the High Court as part of the procedural history of the case”.

39. The application to join the Attorney General as a Notice Party to these proceedings is misconceived. In addition to the reasons set out in the correspondence from the Chief State Solicitor dated 8th April 2025 (which I have set out in full), the ‘statutory injunction’ process under both the regulatory planning and waste management codes which are invoked in this application, seek orders as against GCHL Limited as the respondent and ultimately, subject to the discretion of the court hearing the substantive application, ‘enforcement orders’ as against GCHL Ltd, which may or may not involve a role for Kildare County Council as the planning authority require. The Attorney General has no role in this context.

CONCLUSION

40. Finally, between the hearing of this application and judgment, the High Court (Holland J.) delivered judgment in Malone & McEvoy v Laois County Council, An Bord Pleanála and Booth Recast Concrete Limited & Ors [2025] IEHC 345. Mr. Malone is the first named applicant in that case also.

41. From my reading of that judgment, the same EU law arguments, as made in the application before me, were argued and determined before Holland J.

42. For example, the relief sought at paragraph (4) of the Notice of Motion (paragraph

6 of the judgment of Holland J). repeats verbatim paragraph (6) of the Amended Notice of Motion before me; the relief sought at paragraph (5) of the Notice of Motion (paragraph 6 of the judgment of Holland J). repeats verbatim paragraph (4) of the Amended Notice of Motion before me; the relief sought at paragraph (6) of the Notice of Motion (paragraph 6 of the judgment of Holland J) repeats verbatim paragraph (8) of the Amended Notice of Motion before me. Question (4) of the proposed questions for a preliminary reference before me is in very similar terms to question 5 appended to the judgment of Holland J.

43. Apart from the Attorney General, the other parties are not the same.

44. I shall, therefore, leave over any further consideration or determination of the declarations sought at paragraphs (4) and (6) and the order sought at paragraph (8) of the ‘Amended Notice of Motion’ filed 10th February 2025, and the request for a preliminary reference, to allow the parties in the application before me to consider the judgment in Malone & McEvoy v Laois County Council, An Bord Pleanála and Booth Recast Concrete Limited & Ors [2025] IEHC 345 and how it may affect the balance of the reliefs sought in this application.

PROPOSED ORDER

45. In the circumstances, I propose making the following orders at this juncture:

(i) An order that the Originating Notice of Motion dated 30th March 2023 (as amended by Court order arising from the judgment Malone v GCHL Ltd & The EPA & Ors (No.1) [2024] IEHC 336) be further amended by the addition of the following relief:

“(5) An Order directing GCHL Limited to prepare and

submit, within one month, a report for restoration of

the Ballinderry site to its original state, before the

unauthorised developments. This report must include a

comprehensive account of all removal activities,

including the methodologies employed, evidence of

compliance with EU environmental standards, and

verification by certified contractors. The report shall

be submitted to the Court and verified by an

independent environmental expert to ensure

compliance with the EIA Directive 2014/52 EU, the

Habitats Directive (92/43/EEC), the Waste Framework

Directive 2008/98/EC, as amended”.

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

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

(iv) I shall adjourn the application for, and the consideration of, the balance of the reliefs sought at paragraphs (4), (6) and (8) of the ‘Amended Notice of Motion’ filed on 10th February 2025 and the four proposed questions seeking a preliminary reference in the document entitled ‘Oral submission for Case 2023-

94 MCA’, to allow the parties to consider the judgment of the High Court (Holland J.) in Malone & McEvoy v Laois County Council, An Bord Pleanála and Booth Recast Concrete Limited & Ors [2025] IEHC 345;

(v) I shall put the matter in for mention before me at 10:00 on Tuesday 22nd July 2025.

CONLETH BRADLEY

Wednesday 9th July 2025