Malone v GCHL Ltd & Ors [No.3] (Approved)

Factual and Procedural Background

The Applicant, a litigant in person supported by a notice party environmental group, initiated proceedings seeking reliefs under section 160 of the Planning and Development Act 2000 (the 2000 Act) and section 57 of the Waste Management Act 1996 (the 1996 Act) concerning the restoration and environmental compliance of a former quarry pit operated by the Respondent, Company A. The quarry site is a worked-out sand and gravel pit proposed to be restored by the use of imported waste, which requires a waste licence application submitted by Company A to the Environmental Protection Agency (the Agency). This licence application remains pending.

In a prior judgment, the High Court determined that there was no jurisdictional basis in the Applicant's enforcement action to prohibit or restrain the Agency from processing the waste licence application, which was considered a judicial review matter rather than appropriate relief under the statutory enforcement framework invoked.

Following this, the Applicant filed an Originating Notice of Motion and subsequently an Amended Notice of Motion seeking various orders against Company A and other parties related to unauthorized developments, waste disposal, site restoration, and compliance with environmental laws. The Agency had been removed from the substantive application but is sought to be brought back in by the Applicant through specific reliefs. The Attorney General was also sought to be joined as a notice party, which was opposed.

Legal Issues Presented

1. Whether the Court should grant leave to amend the pleadings and reliefs sought in the substantive application under Order 28 of the Rules of the Superior Courts.
2. Whether the Applicant’s proposed reliefs under the 2000 Act and 1996 Act, including orders for cessation of unauthorized development, removal of illegally disposed waste, and restoration of the quarry site, are appropriate and within the Court’s jurisdiction.
3. Whether the relief seeking prohibition on the Agency from processing the waste licence application is appropriate within the statutory enforcement framework or should be pursued by judicial review.
4. Whether the Court should direct the Agency to decide on the pending waste licence application within a specified timeframe.
5. Whether the Attorney General should be joined as a notice party given the constitutional and EU law implications raised by the Applicant.
6. The extent to which EU law obligations, including compliance with the EIA Directive, Habitats Directive, Waste Framework Directive, and relevant Charter provisions, are engaged in the statutory enforcement proceedings.

Arguments of the Parties

Applicant's Arguments

• The Applicant sought leave to amend pleadings to include additional reliefs, including a detailed restoration report to be prepared by Company A, ensuring compliance with EU environmental standards and directives.
• The Applicant argued that the delays in the Agency’s determination of the waste licence application were excessive and violated rights to effective judicial protection under EU law, justifying a mandamus order directing the Agency to decide within one month.
• The Applicant contended that the Attorney General should be joined as a notice party due to constitutional obligations under Articles 29.4.6 and 34.5.4 of the Irish Constitution, and EU law obligations under Articles 19(1) TEU and 47 of the Charter, to safeguard effective judicial protection and implementation of EU environmental law.
• The Applicant emphasized the public interest and institutional responsibility in enforcing binding EU legal obligations and ensuring environmental law compliance.

Respondents' Arguments

• The Agency and other respondents opposed the joinder of the Attorney General, asserting no constitutional validity challenge was raised and that the Attorney General’s participation was unnecessary and would cause undue cost.
• The Respondent Company A was excused from filing replying affidavits pending determination of related motions, and no procedural objections were raised to the amendment application.
• The Agency and Respondents maintained that reliefs seeking prohibition on the Agency’s processing of the waste licence application and mandamus orders were inappropriate within the statutory enforcement actions and should be pursued by judicial review procedures.

Attorney General's Position

• The Attorney General, through counsel, opposed joinder as a notice party, stating no constitutional validity issue was raised and no relief was sought against the State or Attorney General.
• The Attorney General indicated that claims of breaches of EU law should be addressed by the parties involved without the need for joinder, which would increase costs unnecessarily.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Malone v Company A Ltd & The Agency & Ors (No.1) [2024] IEHC 336	Jurisdictional limits of enforcement applications under section 160 of the 2000 Act and section 57 of the 1996 Act; distinction from judicial review remedies.	Used to disallow relief seeking prohibition on the Agency processing the waste licence application; affirmed the statutory enforcement framework's scope.
Meath County Council v Murray & Anor [2017] IESC 25; [2018] 1 I.R. 189	Flexibility in procedure under section 160 applications; court's inherent jurisdiction to regulate procedures to ensure fairness; scope of orders for restoration and enforcement.	Supported flexible approach to amendment and hearing of enforcement applications; recognized court’s power to order restoration of land affected by unauthorized development.
Brownfield Restoration Ireland Ltd v Wicklow County Council (No. 8) [2023] IEHC 137	Judicial authority to order remediation and restoration of contaminated sites under environmental legislation.	Referenced as analogous litigation involving removal of waste and site remediation, illustrating the court’s power to order environmental restoration.
Rossmore Properties Limited v ESB [2014] IEHC 159	Principles guiding amendment of pleadings under Order 28 of the Rules of the Superior Courts; desirability of flexibility to clarify issues and ensure justice.	Applied to support amendment of pleadings and reliefs sought in the current application.
Harrington v SRF Ltd [2025] IECA 137	Application of procedural flexibility in superior courts to ensure full ventilation of issues.	Reinforced approach to procedural flexibility in hearing and amendment of enforcement applications.
Associação Sindical dos Juízes Portugueses (C-64/16)	Obligation of Member States to ensure effective judicial protection under EU law.	Invoked by Applicant to support constitutional and EU law obligations for judicial protection and enforcement.

Court's Reasoning and Analysis

The Court adopted a flexible procedural approach consistent with established case law to allow amendments to the pleadings and reliefs in the enforcement proceedings, emphasizing the desirability of clarifying the real issues in dispute and ensuring justice. The Court recognized that the statutory enforcement framework under the 2000 Act and 1996 Act empowers it to make orders necessary to ensure compliance with planning and waste management law, including restoration of land affected by unauthorized development.

The Court allowed the addition of a relief directing Company A to prepare and submit a comprehensive restoration report within one month, verified by an independent environmental expert, ensuring compliance with relevant EU environmental directives (EIA Directive, Habitats Directive, Waste Framework Directive).

The Court refused reliefs seeking prohibition on the Agency from processing the waste licence application and mandamus directing the Agency to decide within a specified timeframe, holding these remedies are inappropriate in enforcement applications under the statutory framework and are matters for judicial review processes.

The Court also refused the application to join the Attorney General as a notice party, agreeing with the Attorney General’s position that no constitutional validity challenge was raised, no relief was sought against the State, and that joinder would be unnecessary and costly. The Court noted the statutory enforcement process targets Company A and possibly the local planning authority, with no role for the Attorney General in this context.

The Court acknowledged ongoing related litigation involving similar EU law arguments and deferred consideration of certain reliefs and requests for preliminary reference pending review of that related judgment.

Procedural directions were made to allow further affidavits and submissions to be filed, ensuring all parties have the opportunity to address the amended pleadings and reliefs.

Holding and Implications

The Court granted leave to amend the Originating Notice of Motion by adding a relief directing Company A to prepare and submit a restoration report within one month, ensuring compliance with EU environmental standards and verified by an independent expert.

The Court refused the reliefs seeking to join the Attorney General as a notice party, to compel the Agency to decide on the waste licence application within a specified timeframe, and to compel the filing of replying affidavits by the respondents at this stage.

The Court adjourned consideration of the remaining reliefs and requests for a preliminary reference to allow parties to consider a related High Court judgment addressing similar EU law issues.

The direct effect of this decision is to proceed with the statutory enforcement application against Company A with amended reliefs, excluding reliefs inappropriate for the enforcement framework and without involving the Attorney General. No new legal precedent was established beyond the application of existing case law on procedural flexibility and the scope of statutory enforcement remedies.