Smells from animal tissue processing affecting dwellings 500m distant – Plant standing on low-lying ground – Council refusing Environment Protection Act authorisation believing applicant incapable of meeting condition limiting offensive odours to process area – Secretary of State for the Environment authorising with condition deleted – Whether wrong view taken of enforceability of condition – Whether excessive emphasis placed on lack of proximity – Secretary of State’s decision quashed
The second respondents, Peninsular Proteins Ltd (the company), performed blood processing and animal tissue rendering in Great Torrington, Devon. Those operations had given rise to persistent complaints of offensive odours notwithstanding that the plant was separated from the nearest dwellings by 500m of open land. Modernisation, including the erection of a 15m exhaust stack in 1992, had only partly solved the problem. Both processes fell within regulations made by SI 1991 no 472 under the Environmental Protection Act 1990 which prescribed various processes as ones prohibited unless authorised by the relevant enforcing authority. The company’s application to the relevant enforcing authority, the council, was rejected even though the company, prepared to effect further improvements, would have accepted a condition, commonly imposed by authorities under section 7(1) para (c) (the agreed condition), that “all emissions to air shall be free from offensive odour outside the process boundary”. The refusal, communicated in January 1994, was based on: (i) a decision that no authorisation should issue without such a condition, (ii) a belief that the company would, if authorised, be unable to meet the condition because the plant stood on ground substantially lower than residential areas affected. An appeal by the company was allowed by the Secretary of State for the Environment who by decision letter dated August 13 1996 directed that authorisation be given without the agreed condition. Applying non-statutory guidance AQ16 (95), issued after the inspector’s report, the letter reasoned that such a condition, being couched solely in terms of its aims, should not be imposed save in exceptional cases, notably where the process, unlike those in issue, was in extremely close proximity to inhabited premises. The council applied for judicial review.
Held The decision of the Secretary of State for the Environment was quashed.
1. The effect of the condition was not to “replicate the aim” of the guidance note but to require the achievement of that aim. The condition, when read together with the more specific conditions imposed under section 7 para (a), was not inherently unenforceable, consequently the decision, which allowed for imposition in certain circumstances, was illogical in so far as it was based upon unenforceability.
2. While the condition might properly be limited to exceptional cases, the letter failed to explain why lack of proximity should be seen as the sole decisive factor in the present case. Given the late appearance of the guidance note, the council were unfairly denied the opportunity of pointing, with a not unrealistic prospect of success, to other material considerations.
John Howell QC (instructed by Sharpe Pritchard, London agents for the solicitor to Torridge District Council) appeared for the appellants; David Elvin (instructed by the Treasury Solicitor) appeared for the first respondent; Clive Lewis (instructed by Nicholson Graham & Jones) appeared for the second respondent, Peninsular Proteins Ltd.
