“Statutory Enforcement v. Judicial Review” – Procedural Limits Clarified in Malone v GCHL Ltd & Ors [No. 3] ([2025] IEHC 397)

1. Introduction

This third judgment in the long-running environmental dispute surrounding the former Ballinderry quarry in County Kildare addresses how, and in what forum, different forms of relief may be pursued against public authorities and private actors.
Applicant David Malone (a lay litigant supported by Balyna Environmental Action Group, “BEAG”) seeks wide-ranging orders under:

• Section 160 of the Planning and Development Act 2000 (“PDA 2000”)
• Section 57 of the Waste Management Act 1996 (“WMA 1996”)

Respondents/Notice Parties:

• GCHL Ltd – operator of the quarry
• Environmental Protection Agency (“EPA”)
• Kildare County Council (planning authority)
• Attorney General (sought to be joined)

The central procedural questions were:

1. Can an applicant, in statutory enforcement proceedings, compel the EPA (or any public body) either to act (mandamus) or to refrain from acting (prohibition)?
2. What latitude exists to amend pleadings in such proceedings?
3. When, if ever, should the Attorney General be joined solely because EU-law and constitutional arguments are raised?

2. Summary of the Judgment

Mr Justice Conleth Bradley:

• Allowed Malone to amend his originating notice of motion so as to seek a “Restoration Report” from GCHL. That relief sits comfortably within the statutory enforcement jurisdiction under PDA 2000 s.160 and WMA 1996 s.57.
• Refused reliefs aimed at forcing the EPA to determine a pending waste-licence application within one month; such an order is in the nature of mandamus and must be pursued by judicial review, not by statutory enforcement.
• Refused to join the Attorney General, holding that no issue of constitutional validity arose and that EU-law arguments do not of themselves necessitate the Attorney’s presence.
• Provided directions for the orderly exchange of affidavits, reaffirming the Court’s flexible power to regulate procedure so that justice is done.
• Adjourned several EU-law based declaratory reliefs and a proposed preliminary reference pending consideration of the fresh High Court authority of Malone & McEvoy v Laois Co Co & Ors [2025] IEHC 345.

3. Analysis

3.1 Precedents Cited and Their Influence

a) Meath Co Co v Murray – Supreme Court authority for the proposition that courts may adapt procedures under s.160 to ensure fairness; the judgment endorses a wide remedial jurisdiction, including “restoration, reconstruction…”. Justice Bradley leans on paragraph 71 of McKechnie J’s opinion to conclude that an order compelling GCHL to prepare a restoration report is, at least prima facie, within the High Court’s powers.

b) Rossmore / Harrington – These cases stress the “flexibility” of Order 28 RSC when amending pleadings. By analogy, Bradley J applies that flexibility to amendments even though s.160/s.57 applications are commenced by notice of motion (not by plenary pleadings).

c) Brownfield litigation – Demonstrates that the High Court has repeatedly ordered substantial remediation (remove waste, restore land) via statutory injunctions. The precedent reassures the Court that a compulsory “restoration report” is an available and familiar remedy.

3.2 Legal Reasoning

The core legal logic unfolds in two strands: jurisdictional competence and procedural propriety.

i. Jurisdictional competence – distinguishing statutory enforcement from judicial review

• Statutory enforcement (s.160 PDA / s.57 WMA) allows orders against private actors to cease, remediate or prevent unauthorised development/waste activity.
• Judicial review (Order 84 RSC) is the exclusive route for public-law remedies (prohibition, certiorari, mandamus) against decisions or inaction of public bodies like the EPA.
• Bradley J reiterates his earlier holding (No. 1 judgment, 2024) that trying to restrain the EPA within s.160 proceedings would blur these domains and is impermissible.

ii. Procedural propriety – amendments and participation

• Because statutory injunctions are commenced summarily, amendments require a flexible, justice-driven approach akin to O.28 rather than a rigid pleadings test.
• The Attorney General need not be joined merely because EU-law arguments arise; joinder would create “unnecessary cost” where no constitutional validity challenge exists (Order 60 RSC considered).
• Directions on affidavits: earlier court orders had excused GCHL pending resolution of preliminary motions. Therefore Malone’s bid to compel immediate affidavits was refused, but fresh timelines will now be set.

3.3 Potential Impact

Although the factual issues concern a local quarry, the judgment casts a wide procedural shadow:

• Environmental litigants must separate private enforcement claims (against operators) from public-law claims (against regulators). Attempting to fold both into one statutory motion risks dismissal.
• Regulators (EPA, planning authorities) gain clarity: they cannot be dragged into s.160/s.57 proceedings for mandamus or prohibition; complainants must instead pursue judicial review within three months or show good reason to extend.
• Courts are reminded of – and armed with – flexible tools to sculpt procedure to the demands of complex environmental litigation, while policing the boundary between different forms of relief.
• Future cases involving EU-law based declarations may look to this decision for guidance on when (and when not) to involve the Attorney General.

4. Complex Concepts Simplified

• Statutory Injunction / Enforcement Order – A court order under specific legislation compelling or restraining activity (here: planning & waste laws).
• Mandamus – A judicial review remedy directing a public body to do something it is legally obliged to do.
• Prohibition – A judicial review order preventing a public body from acting beyond its powers.
• Order 28 RSC – Procedural rule governing amendment of pleadings; applied “by analogy” here to notices of motion.
• Preliminary Reference – Request by national court to the Court of Justice of the EU (CJEU) to interpret EU law.

5. Conclusion

Malone v GCHL Ltd & Ors [No. 3] is primarily a procedural landmark. It does not resolve the substantive environmental dispute, but it decisively:

1. Restates that public-law remedies must travel the judicial-review road; statutory enforcement is for private-actor compliance and remediation.
2. Confirms the High Court’s broad discretionary power to compel restoration measures under s.160/s.57 – including the novel step of requiring a detailed, expert-verified “Restoration Report”.
3. Sets boundaries on joinder of the Attorney General, avoiding needless State participation where no constitutional validity issue is pleaded.
4. Demonstrates a pragmatic, flexible procedural ethos, ensuring litigants – including lay applicants – can ventilate complex environmental claims without being ensnared by technicalities, while still safeguarding the proper channels for distinct types of relief.

The decision will resonate in future Irish environmental litigation, serving as a procedural compass for practitioners seeking to blend domestic enforcement mechanisms with EU-law arguments.