Court allows appeal against permit refusal, ruling spent convictions must be disclosed for waste collection permits.

THE CIRCUIT COURT

MIDLAND CIRCUIT COUNTY OF OFFALY

[Record No. 2022/00058]

Neutral Citation: [2024] IECC 17

BETWEEN

AWD WASTE SOLUTIONS LIMITED

APPELLANT

AND

OFFALY COUNTY COUNCIL AS THE NATIONAL WASTE COLLECTION

PERMIT OFFICE

RESPONDENT

JUDGMENT of His Honour Judge Simon McAleese delivered on the 14th day of October 2024.

A BROAD SUMMARY OF THE MATTER

1. AWD Waste Solutions Limited trading as AWD Waste Solutions (“AWD”) is in the business of waste collection.

2. S.34(a) of the Waste Management Act 1996, as amended, (the “1996 Act”) provides that, save in certain limited circumstances, “… a person other than a local authority shall not, for the purposes of reward, with a view to profit or otherwise in the course of business, collect or transport waste,… save under and in accordance with a permit…” granted by an entity designated by or under the 1996 Act.

3. Offaly County Council was nominated under s.34(1)(aa) of the 1996 Act as the local authority with responsibility for the granting and control of waste collection permits nationally. It does so under the auspices of the National Waste Collection Permit Office (the “NWCPO”).

4. In December 2020, NWCPO received an application from AWD for a waste collection permit. Such applications are considered in the context of the 1996 Act and the Waste Management (Collection Permit) Regulations 2007, as amended, (the “2007 Regulations”).

5. In June 2021, NWCPO refused AWD’s application on the basis that AWD could not be deemed a fit and proper person under s.34D(1)(a)(i)(I) of the 1996 Act. The reason given was this: “Shane Byrne and William Byrne, directors of AWD Waste Solutions t/a AWD Waste Solutions, do not meet the ‘Fit and Proper Person’ criteria set out in Section 34(1)(a)(i)(I) having been convicted at Arklow District Court (held in Bray Courthouse) of offences contrary to Section 32(1) of the Waste Management Act, 1996 as amended at Killacloran, Aughrim, on February 12, 2012”.

6. AWD exercised its statutory right of appeal to the District Court against this refusal. It contended that NWCPO should have disregarded the aforementioned convictions of Shane Byrne and William Byrne (the convictions were imposed on 19 July 2013) when assessing whether the applicant for the permit, AWD, was a fit and proper person under the 1996 Act and the 2007 Regulations. It was argued that the convictions were ‘spent’ within the meaning of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 (the “2016 Act”) and should therefore have been disregarded by NWCPO when considering AWD’s application for a waste collection permit.

7. AWD’s appeal came before the District Court in Tullamore on 1 April 2022. It succeeded in its appeal. That decision is in turn under appeal to this court by NWCPO.

A MORE DETAILED DESCRIPTION OF THE MATTER AND THE ISSUES

BEFORE THE COURT

8. Waste, in its many forms, is one of modern society’s greatest challenges. Long gone are the days when waste was largely natural in its composition. Waste collection and disposal is now big business. Private waste management firms are enabled, subject to strict legislative and regulatory requirements, to partake in this area of commerce. In this case the relevant primary and secondary legislation is the 1996 Act and the 2007 Regulations.

9. On 17 December 2020, NWCPO received from AWD an application for a waste collection permit. The application form is a detailed and searching document. This is no accident. The information to be provided by the applicant for a waste collection permit is prescribed by the 2007 Regulations. Furthermore, such information is required to be supported by statutory declaration(s) in a format prescribed by the 2007 Regulations. Such statutory declaration(s) must, where the applicant is a body corporate, be made by each director. In this case the required statutory declarations were made by AWD’s directors: Shane Byrne and William Byrne. In the application form they described themselves as trading via a partnership but it is apparent that this was an error on their parts. Nothing turns on it. The statutory declarations are particularly noteworthy in that each declarant confirms that no information which is required to be included in the application has been omitted. Furthermore they each authorise Offaly County Council as the National Waste Collection Permit Office “… to make any inquiries from official sources as it may consider necessary for the purpose of determining this application and pursuant to section 8 of the Data Protection Act 1988, I consent to the disclosure of details of convictions for relevant offences specified under Article 21 of the Waste Management (Collection Permit) Regulations 2007”. Article 21(8) of the 2007 Regulations lists, inter alia, an offence under section 32(6) [arising from a contravention of s.32(1)] of the 1996 Act, which is the offence for which Shane Byrne and William Byrne received their convictions at Bray District Court on

19 July 2013.

10. AWD’s application form outlines the proposed waste collection activity as follows: “A commercial waste management company. Services to include commercial wheelie bin collection (waste recycling and compost). Skips. Pipe and drain (septic tank and jetter work). Bulk liquid transportation.”.

11. The application form, at section 6, contains the heading: FIT AND PROPER PERSON REQUIREMENTS. Questions are asked of the applicant. S.6.1 is headed Relevant Convictions. It asks, inter alia, whether the applicant “… including in the case of a company and/or any officer of that company, [has] been convicted in the District Court of an offence prescribed under section 32(1) or section 55(8) of the Waste Management Act 1996…?”. The Yes answer box was ticked on behalf of the applicant. Section 6.1 goes on to ask any applicant who has ticked that answer box to include “… a supplementary sheet detailing the court hearing, the case, nature of the offence and any penalty or requirements imposed by the court…”. The applicant ticked the box marked Attached. Amongst various documents appended to the permit application form are copies of the District Court Orders, which record the convictions (a single conviction each) imposed upon Shane Byrne and William Byrne at Bray District Court on 19 July 2013. Each of them pleaded guilty to the charge and a fine of €500 was imposed upon each of them for the commission of an offence under s.32(6) of the 1996 Act. Also appended to the permit application form was a document entitled COURT CASE 2013 which described the circumstances which led to the Byrnes’ convictions. This description outlines a regrettable regulatory lapse which led to the breach of the 1996 Act. The District Court evidently felt that the offence was at the lower end of the spectrum, hence the relatively modest fines imposed upon Shane Byrne and William Byrne.

12. Having said that, I should mention that the District Court convictions were imposed at a time when Shane Byrne and William Byrne were trading via another limited liability company, Arklow Waste Disposal Limited (the “Other Company”) of which they were both directors. The Other Company was apparently also prosecuted and convicted in Bray District Court on the same date as Shane and William Byrne, and in respect of the same charge. I don’t have details of the penalty imposed on the Other Company but I note that there was an earlier conviction of that company in Arklow District Court in February 2011 on one count of environmental pollution contrary to s.32(1) of the 1996 Act.

13. As set out in a detailed Compliance Assessment Determination and Recommendation Report prepared by NWCPO and dated 28 May 2021, which Report was among the papers tendered to the court by NWCPO’s solicitors, the 2013 convictions recorded against the Byrnes and the Other Company led to a review of that company’s waste collection permit. It failed to engage with that review (there were suggestions that it had ceased trading, no longer had a Tax Clearance Certificate etc.) and on 4 April 2014 Offaly County Council / NWPCO revoked its waste collection permit. That revocation was apparently never appealed, presumably because the applicant in this case, a different corporate entity, was managing otherwise to operate a waste collection business following the revocation of the Other Company’s permit. How this worked is perhaps explained in a letter of 21 April 2021 to NWCPO in which the applicant’s Shane Byrne stated, inter alia, “… I was hoping you’d be able to give me some sort of an update on progress on issuance date? I apologise for asking but, as you know, we are currently functioning under the AES permit. This was always meant to be a temporary measure but with their new imminent rebranding to Bord na Móna, I have been given a really close deadline to be off their permit. Leo, I have 12 employees here and we are just very keen to move on from the relationship we had with our previous partners and continue trading in our own right, my family having been in this business for 40 years, and I don’t want to have to close the company because we wouldn’t have a collection permit”.

14. It is notable that Shane Byrne sent an email to NWCPO on 1 February 2021, some one and a half months after submitting AWD’s permit application:

“Hi Claire,

On consultation with my Senior Counsel, I realised that an error was made in our original application. The error was made in Section 6, Point 1: Relevant Convictions (Details contained in Attachment 4 on our application). As per the Spent Convictions Act 2016, there was no requirement for me to submit details of these previous convictions, as they were in the District Court and over 7 years old. I would therefore respectfully ask that you disregard all information submitted in this section please Kind regards Shane Byrne Managing Director”. When replying to an NWCPO Further Information Request dated 9 March 2021, Shane Byrne sent an email to NWCPO in which, inter alia, he stated as follows: “… As mentioned in our previous communication (see below), we again respectfully ask that all information contained within section 6 point 1 of our original submission be disregarded. For under the Spent Conviction Act 2016, we should not have submitted any information in this section…”.

15. The aforementioned NWCPO Compliance Assessment Determination and Recommendation Report draws attention to s.34(4) of the 1996 Act. That subsection provides that: “(4) A local authority shall not grant a waste collection permit unless it is satisfied that –

(a) The applicant is a fit and proper person within the meaning of section 34D to hold a waste collection permit and

(b) The activity concerned would not, if carried on in accordance with such conditions as may be attached to the permit, cause environmental pollution…”.

The portion of s.34D relevant to this matter reads as follows: “34D(1) For the purposes of sections 34, 34A and 34B a person is a fit and proper person if –

(a) neither that person nor any person employed by him or her to direct or control the carrying on of the activity to which the waste collection permit relates, or as the case may be, may relate, has been convicted –

(i) Summarily of an offence under –

(1) Subsection (6) of section 32 consisting of a contravention of subsection (1) of that section,…”

16. Having drawn attention to these legislative provisions, the NWCPO’s Compliance Assessment Determination and Recommendation Report concluded with a recommendation of refusal of AWD’s application for a waste collection permit. It is worth reciting the Recommendation in its entirety:

“RECOMMENDATION

It is hereby recommended that WCP application ref: NWCPO-20-12538-01 is refused.

Reason for Refusal

The Applicant cannot be deemed a Fit and Proper Person in accordance with Section 34D(1)(a)(i)(I) of the Waste Management Act, 1996 as amended:

Shane Byrne and William Byrne, Directors of AWD Waste Solutions Ltd T/A AWD Waste Solutions, do not meet the ‘Fit and Proper Person’ criteria as set out in Section 34D(1)(a)(i)(I), having been convicted at Arklow District Court (held in Bray Courthouse) of offences contrary to Section 32(1) of the Waste Management Act, 1996 as amended at Killacloran, Aughrim, on February 13, 2012”.

17. The above-recited Recommendation was followed by the NWCPO’s Chief Executive’s Order of 1 June 2021 which recorded the NWCPO’s decision to refuse to grant the permit and set out the reason for such refusal: “Decision: By virtue of my powers, functions and duties delegated to me as a Director of Service under Section 154 of the Local Government Act 2001, I hereby order as follows: - It is hereby decided that:

2) Pursuant to Section 34(3), Section 34(4), Section 34(5), Section 34(8) and Section 34D(1)(a) of the Waste Management Act, 1996 as amended, and Article 17(1), Article 17(3) and Article 22 of the Waste Management (Collection Permit) Regulations, 2007 as amended, Offaly County Council as the National Waste Collection Permit Office refuses to grant a waste collection permit reference NWCPO-20-12538-01 to AWD Waste Solutions Ltd T/A AWD Waste Solutions.

Reason for Refusal

The Applicant cannot be deemed a Fit and Proper Person in accordance with Section 34D(1)(a)(i)(I) of the Waste Management Act, 1996 as amended:

Shane Byrne and William Byrne, Directors of AWD Waste Solutions Ltd T/A AWD Waste Solutions, do not meet the ‘Fit and Proper Person’ criteria as set out in Section 34D(1)(a)(i)(I), having been convicted at Arklow District Court (held in Bray Courthouse) of offences contrary to Section 32(1) of the Waste Management Act, 1996 as amended at Killacloran, Aughrim, on February 13, 2012.”.

18. On 1 June 2021, NWCPO’s programme manager, wrote to the applicant, AWD, and advised it that it had been decided to refuse the application for the grant of a waste collection permit. The letter set out the reason for refusal and informed the applicant that it had a statutory right to appeal to the Judge of Tullamore District Court being the District Court in which the principal office in Offaly County Council is situated.

19. A Notice of Appeal to the District Court was filed on 1 July 2021 by Keans Solicitors on behalf of the applicant. The Notice of Appeal contains a paragraph which summarises the grounds of appeal as follows: “… that the decision of the Respondent was based on offences and convictions in the Arklow District Court against the Applicant in the past and, which the Appellant believes same is not a proper ground for refusal in the light of the Criminal Justice (Spent Convictions and Disclosures Act 2016). Pursuant to the said Act a range of minor offences become spent after 7 years. These convicted offences, upon which the decision of the respondent are based, should not have been taken into account nor influence the decision of the respondent in view of the said Criminal Justice (Spent Convictions and Certain Disclosures Act 2016)”.

[Wording as set out in the Notice of Appeal]

20. The Byrnes’ convictions were both previously known about by NWCPO and were disclosed by AWD in its permit application. The question of there being an entitlement not to disclose them is therefore moot.

AN ENTITLEMENT TO DISREGARD ‘SPENT’ CONVICTIONS?

21. Having regard to such prior knowledge and subsequent disclosure, the question arises: does the applicant have any entitlement to have the convictions of its directors disregarded because of their arguably ‘spent’ status under the 2016 Act? We must look at what the 2016 Act is concerned with, viz: permissible non-disclosure of ‘spent’ convictions in certain circumstances. Even if a ‘spent’ conviction is not disclosed, it remains in existence. In the circumstances of this case s.34(4) and S.34D of the 1996 Act combine to create a truly harsh ‘one strike and you’re out’ law. If there was ever any doubt about this, then it was laid to rest by Bradley J in Alan Pilkington t/a Pilkington Grab Hire v Offaly County Council as the National Waste Collection Permit Office (NWCPO) [2024] IEHC 121. That Judgement arose from a Consultative Case Stated by the District Court. I do not intend to reprise Bradley J’s forensic analysis of both the primary and secondary legislation. Paragraph 62 of his Judgement speaks for itself: “62. While the [Environmental Protection Agency], in the above examples, can disregard the fact of a criminal conviction, it is not, in my view, open to the NWCPO, or the District Court on appeal, to infer or read in a similar provision or a discretion into 34D(1)(a)(i)(I)…WMA 1996”.

22. But the facts in Pilkington were somewhat different to this case. Pilkington concerned a statutory review of an existing waste collection permit under s.34A of the 1996 Act following upon the conviction in the District Court (upheld on appeal) of Mr. Pilkington for an offence under s.32(6)(a) of the 1996 Act. That statutory review led to revocation of Mr. Pilkington’s permit on the basis that it had been determined by NWCPO that he had been convicted of an offence within the ambit of of s.34D of the 1996 Act and was therefore no longer a fit and proper person to hold a permit. The 2016 Act and its arguable application to a conviction for an offence under section 32(6)(a) of the 1996 Act did not arise for consideration in Pilkington. This brings us back to the question which is at the heart of this matter: Is AWD entitled to have the Byrnes’ convictions (assuming they are regarded as ‘spent’ within the meaning of the 2016 Act) disregarded by NWCPO in the context of AWD’s application for a waste collection permit? Does the 2016 Act stretch that far? We know (Pilkington) that such convictions cannot ordinarily be disregarded in the context of the governance of waste collection permits pursuant to the 1996 Act and the 2007 Regulations.

23. When interpreting the 2016 Act, this court has regard to the principles of statutory construction which were set out by the Supreme Court in A, B & C (a minor suing by his next friend, A) v the Minister for Foreign Affairs and Trade [2023] IESC 10. Bradley J in Pilkington (paragraphs 27 and 28) noted and followed the Supreme Court’s guidance in A, B & C. He was of course interpreting the 1996 Act. This court is interpreting the provisions of the 2016 Act which are argued by AWD’s solicitor, Mr. Kean, to require NWCPO to disregard the Byrne’s convictions. As the Supreme Court in A, B & C (paragraph 73) reminds us: “…The court must thus ascertain the meaning of the section by reference to its language, place, function and context, the plain and ordinary meaning of the language being the predominant factor in identifying the effect of the provision but the others always being potentially relevant to elucidating, expanding, contracting or contextualising the apparent meaning of those words”.

24. Applying common sense and the plain and ordinary language of the 2016 Act, it is clear that, even if the Byrnes’ convictions were not already known to NWCPO and had not, additionally, been disclosed as part of the application process, there existed no entitlement to non-disclosure of those convictions. Firstly, as Mr Nerney, counsel for NWCPO pointed out, the applicant, AWD, is a separate legal entity to its shareholders and directors. It is required to be a fit and proper person within the meaning of s.34D of the 1996 Act. It, through its directors, is responsible for accurate completion of the application form. Its directors are providing information on AWD’s behalf, not on their own behalf. While they might contend that they need not disclose personal convictions that they regard as ‘spent’, that does not mean that the company, AWD, is by extension excused from disclosure of their convictions, even if they are correct in regarding those convictions as ‘spent’ convictions. In short, it is the company, AWD, which is obliged by rule of law (the 2007 Regulations) to disclose its directors’ convictions. If it had a relevant conviction, it would not be entitled to rely upon the 2016 Act as the reliefs available under that Act are available only to natural persons, not corporations. Secondly, Part 2 of the 2016 Act concerns ‘spent’ convictions. Section 5 of the 2016 Act is headed Convictions which may be regarded as spent in certain circumstances. S.5(1) provides as follows: “5. (1) Where a person is convicted of an offence, whether before or after the commencement of this Part, and the conditions specified in subsection (2) are satisfied, then subject to provisions of this Part, the conviction may be regarded as a spent conviction”.

[Emphasis added]

25. S.6 of the 2016 Act is headed General effect of spent conviction. S.6(1) provides as follows: “6. (1) subject to the provisions of this Part, where a person has a conviction which is, in accordance with this Part, regarded as a spent conviction, he or she shall not be required by –

(a) any rule of law, or

(b) by the provisions of any agreement or arrangement which purport to require the person to disclose the conviction or any circumstances ancillary to the conviction, to disclose the conviction or the circumstances ancillary thereto”.

[Emphasis added]

26. It is clear that, so far as the entitlement not to disclose spent convictions is concerned, the effect of the 2016 Act is far from unconditional. Even if the Byrnes’ convictions are regarded as ‘spent’ by virtue of having satisfied the conditions specified at s.5(2)(c) to

(d) of the 2016 Act, then there is the insurmountable hurdle thrown up for them by s.8. S.8.(3) of the 2016 Act:

… (3) Nothing in this Part shall affect -

(c) The operation of an enactment under which, in consequence of any conviction, a person is subject, otherwise than by way of sentence, to any disqualification, disability, prohibition or any other penalty or any registration requirement, whether or not the period of which extends beyond the relevant period applying to the sentence for such conviction”.

27. The 2007 Regulations provide for disclosure of information (via permit applications) relevant, inter alia, to the question of whether or not a person is a fit and proper person to be granted a waste collection permit. Where the applicant is a body corporate, the applicant must disclose information as to certain prescribed criminal convictions in relation not just to itself but also to each director, manager, company secretary or other similar officer of that body corporate. In particular, the 2007 Regulations impose an obligation upon an applicant requiring it/him/her/them to disclose information in relation to any criminal conviction set out in s.34D(1)(a)(i) of the 1996 Act. This is not an optional disclosure; nor is it obviated by any provision of the 2016 Act. The relevant “enactment” here, within the meaning of s.8(3)(c) of the 2016 Act, is the 1996 Act. The 1996 Act so far as waste collection permits are concerned, operates via the 2007 Regulations. S.8(3)(c) of the 2016 Act does not allow any non-disclosure of convictions where such non-disclosure would have the effect of impeding or preventing the operation of an enactment falling within its purview, one such enactment being the 1996 Act.

28. Thirdly, while an application for a waste collection permit is not referred to among the applications for licences, authorisations and certificates listed at s.11(1) (a) to (f) of the 2016 Act, s.11 disapplies s.6 of that Act “… to any other enactment which provides for the disclosure of a person’s criminal convictions as part of an application by or on behalf of the person for a licence, permit or any other form of authorisation, approval or registration…”. The 1996 Act and the 2007 Regulations provide for such disclosure when an application is made for a waste collection permit. That disclosure requirement is not overridden by s.6 of the 2016 Act; in such circumstances s.6 is disapplied by s.11 of that Act.

29. But, of course, all of this is technically obiter when it comes to consideration of the key argument put forward by AWD, namely a supposed obligation upon NWCPO pursuant to the 2016 Act to disregard the information about the Byrnes’ convictions even though that information was within its knowledge prior to the application for the waste collection permit and was disclosed to it during the course of that application. There is nothing within the 2016 Act which provides for or even suggests that there is a ‘disregard’ mechanism for spent convictions in such circumstances.

DECISION

30. The NWCPO’s appeal must therefore succeed and I order that the District Court’s ruling be overturned.