High Court grants directions for substantive hearing on waste licence restoration order validity under Planning and Development Act 2000.

APPROVED

AN ARD-CHÚIRT

THE HIGH COURT

[2026] IEHC 118

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. 4)

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

INTRODUCTION

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

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

(i) An order that the Originating Notice of Motion dated 30th March 2023 (as amended by Court order arising from the judgment in Malone (No. 1)) be further amended by the addition of the following relief: “(5) An Order directing GCHL Limited to prepare and submit, within one month, a report for restoration of the Ballinderry site to its original state, before the unauthorised developments. This report must include a comprehensive account of all removal activities, including the methodologies employed, evidence of compliance with EU environmental standards, and verification by certified contractors. The report shall be submitted to the Court and verified by an independent environmental expert to ensure compliance with the EIA Directive 2014/52 EU, the Habitats Directive (92/43/EEC), the Waste Framework Directive 2008/98/EC, as amended”;

(ii) An order that the ‘Amended Affidavit’ of Mr. Malone sworn on 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, 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 refused the reliefs sought in paragraphs (2), (3) and (7) of the ‘Amended Notice of Motion’ filed on 10th February 2025;

(iv) I adjourned the consideration of the balance of the reliefs sought at paras 4, 6 and 8 of the ‘Amended Notice of Motion’ filed on 10th February 2025 and the proposed questions seeking a preliminary reference to allow the parties to consider the judgment of the High Court (Holland J.) in Malone & McEvoy v Laois County Council, An Bord Pleanála and Booth Recast Concrete Limited & Ors [2025] IEHC 345 (“Booth”).

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

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

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

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

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

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

CJEU case-law

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

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

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

“5) A declaration that the Respondents have acted in contravention of Article 19(1) of the TEU and Article 191 of the TFEU by failing to implement the judgments of the CJEU in Cases C-50/09, C-215/06, C-494/01, C-164/17, C-290/15, and C-258/11. This failure constitutes a breach of the legislative obligations arising from measures transposed into Irish law under Section 3 of the European Communities Act 1972, which give binding effect to these judgments. The Respondents’ actions undermine compliance with EU law and the principles of effective legal protection and environmental protection enshrined in the Treaties.”

Alleged failure to implement Directives

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

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

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

“4) A declaration that the Respondents have failed to implement the EIA Directive, 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, Article 4(3) and Article 17 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.”

13. In his written and oral submissions, Mr. Malone submitted that if the court could not grant the declaration sought at para. 6 of the proposed ‘Amended Notice of Motion’ filed on 10th February 2025, the following two questions should be referred to the CJEU under Article 267 of the TFEU:

“Question 1: Where a Member State has transposed the EIA Directive, Habitats Directive, Waste Framework Directive, and Public Participation Directive following CJEU rulings (C-50/09, C-215/06, C-494/01), but consistently fails to implement them in practice, particularly when unauthorised developments proceed without environmental assessments by the competent authority, does this breach the Member State’s obligations under Articles 288 TFEU, 4(3), 17, and 19(1) TEU, Article 47 of the Charter, and Article 29.4.6 of the Irish Constitution? Question 2: Where a project constitutes an unauthorised development without planning permission and without an application for substitute consent under Part XA of the Planning and Development Act 2000, is the Member State obliged under Article 288 TFEU, Articles 4(3) and 19(1) TEU, and Article 47 of the Charter to ensure that such development cannot proceed or be regularised without full compliance with the EIA Directive as amended by Directive 2014/52/EU, the Habitats Directive, and the Waste Framework Directive?”

14. Mr. Malone further submitted that “these questions arise directly from the current proceedings and are informed by CJEU rulings in Cases C-494/01, C-215/06, C-50/09 and the ACCC findings in ACCC/C/2010/54. They address Ireland’s ongoing failure to properly implement and enforce EU law, which is central to the relief sought under para. (6).”

15. Similarly, at para. 50 of his judgment in Booth, Holland J. stated that “Mr Malone at the hearing supplied written submissions 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.”

16. Further, the second question which Mr. Malone and Mr. McEvoy sought to be referred to the CJEU under Article 267 in Booth was as follows:

“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?”

Article 133

17. The proposed ‘Amended Notice of Motion’ filed on 10th February 2025, in the case before me, sought the following order at para. 8:

“(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.”

18. In Booth, the Applicants sought the following reliefs at para. 6 of the originating Notice of Motion in that case:

“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.”

19. In what was described as a ‘Legal Affidavit’ filed on 23rd April 2025, Mr. Malone also sought to make an Article 267 reference in relation to the following five questions:

“Question 1: Where an individual applicant was directly involved in complaints that led to infringement proceedings under Article 258 TFEU, and where the CJEU subsequently issued binding judgments (e.g., Cases C-50/09, C-215/06, and C-494/01), does a continued failure by national authorities to fully implement the relevant legislation and administrative measures constitute an ongoing breach of Article 19(1) TEU, thereby requiring national courts to ensure effective judicial protection in accordance with the principles of direct effect, supremacy, and consistent interpretation?

Question 2: Does the refusal of a designated public authority, such as the Attorney General or the Environmental Protection Agency (EPA), to participate in proceedings concerning the implementation of binding EU environmental directives and CJEU judgments: Breach the principle of sincere cooperation under Article 4(3) TEU; Infringe the right to an effective remedy and fair hearing under Article 47 of the Charter of Fundamental Rights; And amount to a failure by the Member State to ensure effective judicial protection, as required by Article 19(1) TEU, where such refusal impedes the national court’s ability to adjudicate compliance with Union law?

Question 3: Where national proceedings engage directly applicable EU environmental legislation (including the Environmental Impact Assessment Directive 2011/92/EU, as amended by Directive 2014/52/EU; the Habitats Directive 92/43/EEC; the Waste Framework Directive 2008/98/EC; and the Public Participation Directive 2003/35/EC), and concern the enforcement of prior judgments of the CJEU: Are national courts required to first determine whether such proceedings fall within the material scope of Union law before applying domestic procedural rules? Does Articles

47 of the Charter and 19(1) TEU, together with the aforementioned directives, preclude a national court from striking out or declining to adjudicate substantive EU law claims solely on the basis of domestic procedural provisions (such as Order 19, Rule 28 of the Rules of the Superior Courts), without first determining the applicability of Union law? If Union law is applicable, is the national court required to act as a decentralised EU court and ensure that the right to an effective remedy and effective judicial protection is fully upheld?

Question 4: Where national procedural rules such as the Rules of the Superior Courts or the doctrine of inherent jurisdiction, are invoked to strike out pleadings that engage directly effective EU law: Must such rules be interpreted restrictively and in conformity with Union law? Does the striking out of such pleadings, without a prior assessment of the EU law dimension, breach Article 47 of the Charter, Article 19(1) TEU, and the CJEU’s case law, including C-243/15 and C-279/12?

Question 5: Given that the EPA is a designated enforcement authority under the EIA, Waste, and Habitats Directives, and a full member of IMPEL (the EU Network for the Implementation and Enforcement of Environmental Law), is it compatible with Union law, including Articles 4(3) TEU and 260 TFEU, for the EPA to: Withdraw from proceedings involving alleged non-compliance with binding CJEU judgments; Do so without providing any explanation or institutional justification; and Where such withdrawal may undermine environmental enforcement, cooperative compliance, and access to justice, including rights protected under Article 9 of the Aarhus Convention as implemented by EU law?”

20. Similarly, in a document entitled ‘Oral Submission for Case 2023/94 MCA’, Mr. Malone submitted that the following four questions which inter alia cover the similar theme of effective judicial protection (as per Article 19(1) TEU, Article 47 of the Charter and Article 29.4.6º of the Constitution) as other proposed questions, should be referred to the CJEU, pursuant to Article 267 TFEU:

“Question 1

Where national proceedings raise substantive issues under Union environmental law, including the EIA Directive 2011/92/EU, as amended by Directive 2014/52/EU, the Habitats Directive 92/43/EEC, and binding judgments of the CJEU in Cases C-50/09, C-215/06, and C-494/01, is a national court required pursuant to Article 19(1) TEU and Article 47 of the Charter, read in conjunction with Article 51(1), to undertake a preliminary assessment of whether the EU law elements raised are arguable and relevant before applying domestic procedural rules, such as those governing the amendment of pleadings?

Question 2

In circumstances where a designated competent authority under Union environmental law, such as the Environmental Protection Agency (EPA), as a designated competent authority under Union environmental law, continues to hold statutory responsibilities in relation to licensing or enforcement obligations derived from the EIA Directive, the Habitats Directive, or the Public Participation Directive, the Aarhus Convention and binding judgments of the CJEU in Cases C-50/09, C-215/06, and C-494/01, but asserts before a national court that it has “no further role” in the proceedings due to the prior striking out of part of the applicant’s pleadings.

Does the principle of sincere cooperation under Article 4(3) TEU, read together with Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union, preclude a national court acting as a decentralised Union court from accepting such a stance, where doing so may or undermine the continuing application or judicial oversight of binding obligations under Union law?

Question 3

Where a Member State has enacted new legislation to implement the CJEU judgement in Case C-215/05, namely S.I. No 648 of, does the principle of effectiveness and the obligation to ensure effective judicial protection require a national court to permit an applicant to amend their pleadings to reflect the amended legal framework, to ensure compliance with Article 47 of the Charter?

Question 4

In light of the ruling of the CJEU Case C-215/06, Commission v Ireland, does Article 6(3) of the Habits Directive 92/43/EEC and Articles 2 and 5 of the EIA Directive 2011/92/EU, as amended by Directive 2014/52/EU, require that, where an unauthorised development is subject to a substitute consent procedure under national law, the applicant must submit to the competent authority, An Bord Pleanála a Remedial Environmental Impact Assessment Report and a Remedial Natura Impact Statement, where the original project would have required an environmental impact assessment or an appropriate assessment under EU law?”

DISCUSSION AND DECISION

21. The reliefs sought against GCHL Ltd in this application are brought pursuant to s. 160 of the 2000 Act and s. 57 of the 1996 Act in relation to the former Ballinderry quarry pit operated by GCHL Ltd.

22. As discussed in the previous judgments delivered in relation to interlocutory matters that have arisen in this case, the reliefs sought under the 2000 Act and the 1996 Act are in the form of ‘statutory injunction’ type remedies and are part of the suite of regulatory enforcement measures which are available as a matter of law to local authorities and to citizens and, notwithstanding the matters set out at paras 4, 6 and 8 of the proposed ‘Amended Notice of Motion’ filed on 10th February 2025 and the questions which Mr. Malone suggests should be the subject of an Article 267 reference, s. 160 of the 2000 Act and s. 57 of the 1996 Act constitute effective remedies in domestic and EU law and are remedies which Mr. Malone has invoked in this application: see the discussion of these statutory procedures and remedies in Malone (No. 1).

23. Further, the only respondent in this application is GCHL Ltd which is a private entity and is not an emanation of the State. The remedies sought under the 1996 and 2000 Acts are remedies which are potentially available – assuming Mr. Malone proves his case and subject to the discretion of the High Court judge hearing the matter and any other developments which may have occurred – against an entity, such as the respondent.

24. Additionally, Mr. Malone has expressly stated that he seeks no relief as against Kildare County Council, which is joined in this application as a Notice Party.

25. Further, as set out above, the matters which were left over for further consideration in Malone (No. 3) sought at paras 4, 6 and 8 of the proposed ‘Amended Notice of Motion’ filed on 10th February 2025, mirror almost verbatim those which were addressed by Holland J. in his judgment in Booth (as set out above) where Holland J. struck out the proceedings against An Bord Pleanála and Laois County Council.

26. Mr. Malone was one of the applicants (who were appearing as litigants in person) in Booth and is the applicant (and is appearing as a litigant in person) in this application.

27. In Booth, Mr. Malone and Mr. McEvoy had sought a number of reliefs pursuant to s. 160 of the 2000 Act restraining alleged unauthorised development and requiring site remediation by the third named respondent on lands at Ballymullen, Abbeyleix, County Laois on which a sand and gravel pit (quarry) and a concrete products manufacturing facility was operated. No relief was sought pursuant to the provisions of the Waste Management Act 1996.

28. In this application before me, Mr. Malone is supported by the second named Notice Party, Balyna Environmental Action Group, in proceedings which he has brought seeking reliefs pursuant to s. 160 of the 2000 Act and s. 57 of the 1996 Act in relation to the former Ballinderry quarry pit operated by GCHL Ltd.

29. Insofar as the proposed references under Article 267 are concerned, these essentially seek to make the same points which are raised in the declarations sought at paras 4 and 6 or by the Order sought at paragraph 8 of the ‘Amended Notice of Motion’ filed on 10th February 2025.

30. For example, the reference to the obligations in the declaration sought in para. 6 of the proposed ‘Amended Notice of Motion’ filed on 10th February 2025 and, in lieu thereof the two potential preliminary references pursuant to Article 267 TFEU which are set out on p. 9 of Mr. Malone’s written submission under the sub-heading ‘Potential Preliminary Reference under Article 267 TFEU’, insofar as they contend that obligations arise on the Member State or an emanation of the State or a Competent Authority under Article 288 TFEU, Articles 4(3), 17, and 19(1) TEU, Article 47 of the Charter, and Article 29.4.6 of the Irish Constitution in relation to alleged unauthorised development and/or without planning permission or substitute consent and the EIA Directive (as amended), Habitats Directive, Waste Framework Directive, and Public Participation Directive following CJEU rulings in C-50/09, C-215/06, C-494/01), these are not, and cannot be, directed at the respondent in this case, which is a company, GCHL Limited.

31. In what is referred to as a ‘Legal Affidavit’ filed on 23rd April 2025, Mr. Malone also sought to make an Article 267 in the context of the following five questions.

32. In relation to Question 1, Article 19(1) TEU places the obligation on Member States to provide remedies sufficient to ensure effective judicial protection in the fields covered by European Union law and not the respondent in this case, GCHL Ltd.

33. Further, s. 160 of the 2000 Act and s. 57 of the 1996 Act both provide effective remedies for the Applicant.

34. In relation to Question 2, insofar as it arises, the position of the EPA was addressed in Malone (No. 1) and the position of the Attorney General was addressed in Malone (No. 3) [2025] IEHC 397.

35. In relation to Questions 3, 4 and 5, a version of questions 3 and 4 were raised by the Applicants in Booth and addressed by Holland J. in his judgment in Booth (referred to below).

36. In addition, insofar as Questions 3, 4 and 5 are concerned, in Malone (No. 1), I struck out the particular relief against the EPA (the Agency) which sought, at that time, to prohibit its processing of the waste licence application and I addressed inter alia the provisions of s. 160 of the 2000 Act and s. 57 of the 1996 Act.

37. In terms of the Applicant seeking to raise similar EU law issues, at para. 106 of his judgment in Booth, Holland J., for example, observed that “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 a high level of environmental protection and the polluter pays principle) and Article 29.4.6 Bunreacht. 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.”

38. The five questions proposed by Mr. Malone for preliminary reference under Article 267 TFEU in Booth were as follows:

“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?

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?”

39. These proposed questions were addressed by Holland J. in Booth at paras 152 to 155 of his judgment, as follows:

“152. As stated, in his written submissions at the hearing 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, a court of last resort - against whose decisions there is no judicial remedy under national law - see Lyckeskog, Kubera, Sony and Ó Conbhuí. 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 Dowling 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 Malone 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 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.”

40. Further, insofar as the orders sought in paras 4, 6 and 8 of the proposed ‘Amended Notice of Motion’ filed on 10th February 2025 are concerned, and the similar arguments which are sought to be raised as a matter of EU law (including the proposed references pursuant to Article 267), having regard to the nature of the remedies (prescribed under s. 160 of the 2000 Act (and the similar effect of the provisions under s. 57 of the 1996 Act), the principles set out by the High Court (Clarke J., as he then was) in Hughes v Worldport Communications Inc [2005] IEHC

189 (recently applied, for example, by Barr J. in Friedman v. Residential Tenancies Board [2025] IEHC 477), I consider that I should follow the decision and analysis of Holland J. in Booth.

41. In Booth, for example, it had been argued by An Bord Pleanála (“the Board”) and Laois County Council (“the Council”) that s. 160 of the 2000 Act provided for injunctive relief and not the reliefs at paras 4, 5 and 6 of the Notice of Motion in that case, which as set out above, are similar to the reliefs set out at paras 4 and 6, and the order sought at para. 8 of the ‘Amended Notice of Motion’ filed on 10th February 2025 in the case before me.

42. Holland J. at para. 177 of his judgment in Booth generally accepted the submissions made on behalf the Board and the Council and that s. 160 of the 2000 Act provided “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”.

43. Having regard to the decision of the High Court (Hogan J.) in Wicklow County Council v Fortune (No. 4) [2014] IEHC 267, in concluding that any declaratory relief granted in s. 160 proceedings must be ancillary to that purpose to restrain and/or remediate unauthorised development, Holland J. observed at para. 178 of his judgment in Booth that “[s]uch 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”, and at para. 179 that “[t]he 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.”

44. At para. 183 of his judgment in Booth, Holland J. stated that there was “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.”

45. Earlier at para. 140 of his judgment, Holland J. stated that he could not 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.” A similar argument was posited by counsel on behalf of GCHL Ltd in this case.

46. Holland J. determined that the proceedings against the Board and the County Council were improperly constituted, lacked jurisdictional basis, were bound to fail and were an abuse of process. The court dismissed the proceedings against the Board and the Council (the Board qua planning authority were joined as a Notice Party to assist the court) and the proceedings were maintained against Booth Precast Concrete Ltd.

47. Insofar as the claim for damages/compensation is concerned, Holland J. in Booth addressed this issue at para. 186 of his judgment, as follows: “Given what I have described as the specific, focussed, circumscribed and (generally) summary nature of s.160 proceedings, I am satisfied that Browne is correct in citing Ellis and Centz 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”.

48. In the circumstances, therefore, for the reasons set out above, I refuse to include the declarations sought at paragraphs 4 and 6 or the order sought at para. 8 of the ‘Amended Notice of Motion’ filed on 10th February 2025 to the proceedings brought by Mr. Malone in this application pursuant to s. 160 of the 2000 Act and s. 57 of the 1996 Act.

49. Further, given the nature of these applications sought under the 2000 and 1996 Acts and the form of the remedies potentially available as against GCHL Ltd, I do not consider, for the reasons set out above, that it is appropriate to make a reference to the CJEU under Article 267 TFEU in relation to the questions proposed. I express no view on whether or not Mr. Malone wishes to pursue those issues against emanations of the State in other proceedings.

BALYNA ENVIRONMENTAL ACTION GROUP

50. On behalf of the Balyna Environmental Action Group which supports Mr. Malone’s application brought pursuant to s. 160 of the 2000 Act and s. 57 of the 1996 Act, Ms. Kane referred to the members of the Community Action Group and their concerns and fears in relation to their wells and water supply to their homes and the risk of contamination of the water supply.

51. Ms. Kane’s submission addressed a number of matters including inter alia the community context, the history of the Ballinderry site including the planning history and alleged noncompliance with conditions and references to fines and penalties. It further addressed issues in relation to ground water and a restoration plan, the question of waste, the role of Kildare County Council, the reference to warning letters, the issue of waste, previous proceedings involving the site and the proposed sale of the site.

52. As mentioned, all of the matters raised by Ms. Kane and the Balyna Environmental Action Group can be addressed at the substantive hearing of this application.

MR. MALONE’S AFFIDAVIT DATED 20TH OCTOBER 2025

53. Between the delivery of the judgment in Malone (No. 3) and the hearing of the balance of this application on 5th November 2025, Mr. Malone filed a further Affidavit dated 20th October 2025. Again, that Affidavit and exhibits will form part of the substantive hearing.

54. In that Affidavit and exhibits, reference is made to correspondence from the solicitor for Kildare County Council dated 13th October 2025. This correspondence refers to another set of proceedings entitled The High Court, Record No. 2015/383MCA, Kildare County Council v LCP Manufacturing Limited t/a Leinster Aggregates and Good Concrete (In Receivership) and (by Order) Environmental Protection Agency and refers to an Order of the High Court (Gearty J.) in those proceedings dated 22nd July 2025 which inter alia directed the restoration of the quarry. The schedule to that Order was exhibited by Mr. Malone. It is clear from paragraph (ii) of that schedule that GCHL Limited was joined as a respondent to those proceedings on consent and that the terms of the order, which the parties consented to, directed the restoration of the quarry on the terms set out in the order. Mr. Malone and the Balyna Environmental Action Group were not parties to those proceedings.

55. In his submissions, counsel for GCHL Limited stated that the application on 2nd June 2018 for a Waste Licence to the Environmental Protection Agency, which had been pending before the Agency during the various interlocutory applications, had been withdrawn on 29th September 2025 on behalf of GCHL Ltd after the making of the High Court order dated 22nd July 2025. Counsel for GCHL Ltd reserved the right to address the context of those matters and the background to those proceedings which led to the High Court order dated 22nd July 2025 and to do so in the Affidavits to be filed in response to Mr. Malone’s Affidavits and submissions and the Affidavit and submissions made on behalf of the Balyna Environmental Action Group.

56. The proceedings entitled High Court, Record No. 2015/383MCA, (Kildare County Council v LCP Manufacturing Limited t/a Leinster Aggregates and Good Concrete (In Receivership) and (by Order) Environmental Protection Agency (and by Order GCHL Ltd)) appear to arise from an application by Kildare County Council pursuant to s. 160 of the 2000 Act where the parties reached agreement, leading to the consent order dated 22nd July 2025 which inter alia directed the restoration of the site in accordance with an approved restoration plan within a period of 4 years from the date of the Order. Counsel for GCHL Limited submitted that the order of the High Court dated 22nd July 2025 allowed the importation of by-product and not waste onto the lands and that the court had carried out the relevant EIA and AA screening exercises on foot of reports submitted.

57. The consequences of the Order of the High Court dated 22nd July 2025 made on foot of the proceedings Record No. 2015/383MCA to these proceedings brought by Mr. Malone and supported by the Balyna Environmental Action Group will be a matter for the substantive hearing of this application.

DIRECTIONS

58. To that end, it is, I believe, appropriate now to give directions as to the exchange of documentation as much time has been expended on preliminary matters.

59. Up until this time GCHL Ltd, has by order of the court, been relieved from the requirement to file affidavits until these interlocutory applications had been addressed.

60. I, therefore, propose that within a period of 4 weeks from the date of this judgment, GCHL Ltd are to file any replying Affidavits to the issues which have been raised by Mr. Malone in this application pursuant to s. 160 of the 2000 Act and s. 57 of the 1996 Act as per the amended Notice of Motion. It is also directed to respond to the submissions made on behalf the Balyna Environmental Action Group within the same time period.

61. Kildare County Council, as a Notice Party, will have a similar period of 4 weeks to file any response which they may wish to do.

62. Thereafter, I shall give Mr. Malone a period of 3 weeks to file any Affidavit in response to GCHL Ltd and Kildare County Council. I shall give a similar period of 3 weeks to Balyna Environmental Action Group to furnish any responding submission.

63. Assuming all of that is done, the matter can go back to the Non-Jury/Judicial Review List for the issuing of further directions.

64. My provisional view is to make no order as to costs and if any of the parties seek a different costs order, that matter can be addressed at the next for mention date, which will be Wednesday 4th March 2026 at 10.30am.

CONLETH BRADLEY

19th February 2026