The High Court has struck out a request by David Malone to stop the Environmental Protection Agency (EPA) processing a waste licence application for the former Ballinderry quarry in County Kildare. The ruling did not decide Malone’s other claims about the quarry or the merits of the pending licence application.
Mr Justice Conleth Bradley delivered the judgment on 16 May 2024. Malone, representing himself, brought proceedings under planning and waste legislation against GCHL Ltd, the EPA, Kildare County Council and the Balyna Environmental Action Group. His substantive application seeks orders concerning alleged unauthorised development and waste disposal at the quarry. Those allegations were not determined in this motion.
The EPA’s separate motion concerned only paragraph five of Malone’s application. That paragraph sought to prevent the agency from processing GCHL’s waste licence application, reference W0298-01, until GCHL submitted remedial environmental and nature impact statements to An Bord Pleanála and sought substitute consent. The licence application, submitted in 2018, remained pending when the motion was heard in March 2024.
The EPA argued that the statutory provisions Malone relied on did not give the court power to restrain the agency’s licensing process, and that a challenge to the agency’s decision-making must use the judicial review procedure. GCHL appeared on a watching brief and reserved its position on the remaining claims.
Malone argued that environmental and EU law required the agency to address planning and environmental assessment issues before processing the licence application. He relied, among other matters, on earlier Irish and EU court decisions. Justice Bradley did not decide whether those arguments would succeed in a properly brought challenge.
The judge found that the planning and waste provisions invoked in Malone’s proceedings provide for enforcement orders concerning unauthorised development and the holding, recovery or disposal of waste. They do not provide a jurisdictional basis for prohibiting the EPA from determining a licence application. He said such a challenge would ordinarily be brought by judicial review, subject to the applicable statutory requirements, including section 43(5) of the Waste Management Act 1996.
The court also held that allowing paragraph five to proceed in this form would amount to an improper collateral challenge and an abuse of process. It struck out and dismissed that paragraph as against the EPA. The ruling expressly left paragraphs one to four unaffected and made no assessment of the prospects of any judicial review challenge.
The matter was listed before the judge on 31 May 2024 to address ancillary and consequential issues.