Animal rendering — Authorisations — BATNEEC — Guidance note recommending condition be attached to authorisations for rendering process — Judge rejecting appellants’ challenge to legality of guidance — Whether guidance sidestepping BATNEEC requirement — Sections 6 and 7 of Environmental Protection Act 1990 — Appeal dismissed
The first appellant was the representative body for British renderers of animal by-products and the second appellant was a rendering company. The rendering process could not be carried out without a local authority authorisation granted pursuant to section 6 of the Environmental Protection Act 1990, and local authorities had the power to attach conditions to such authorisations in order to achieve the objectives set out in section 7(2)(a) to (d) of the Act. Those objectives included: section 7(2)(a), which ensured that, in carrying out the process, the best available techniques not entailing excessive cost (BATNEEC) would be used for preventing the release of prescribed substances or making them harmless; and section 7(2)(c), which ensured compliance with requirements or quality standards prescribed by the Secretary of State.
The appellants objected to a process guidance note issued by the Secretary of State. The note recommended that a condition be imposed upon most authorisations, making it an offence to carry out the rendering process if offensive odours emanated beyond an “odour boundary” around the rendering site, unless it could be shown that the renderer concerned had used all due diligence and taken all reasonable steps to prevent the escape of the odour. In proceedings challenging the legality of the guidance note, the appellants contended, inter alia, that the guidance: (i) was directed to conditions imposed under section 7(2)(a); (ii) sidestepped the requirement of BATNEEC; and (iii) therefore invited authorities to impose conditions they had no power to impose. The appellants’ claim was dismissed, and they appealed.
Held: The appeal was dismissed.
It would be legitimate to attach a condition to an authorisation that prohibited the emission of offensive odours unless BATNEEC had been employed to avoid such emissions. The effect of the Secretary of State’s guidance, in suggesting that there would be no breach of his suggested odour-boundary condition provided that the renderer could show that it had exercised due diligence and taken reasonable steps to prevent the emanation, was to the same effect as BATNEEC. Despite the different wording, the same test was imposed, and the failure to use the particular statutory phrase did not make the guidance illegal. The imposition of a specific condition in those terms added nothing to the general condition, implied into any authorisation by virtue of section 7(4), requiring BATNEEC to be used in carrying on the authorised process. However, there was no legal objection to advising local authorities expressly to include the specific condition in their authorisations, and doing so served to draw the BATNEEC requirement to the renderer’s attention. The effect of including the specific condition was to make the general condition inapplicable and to substitute the specific condition for it. Since the specific condition only began to “bite” at the odour boundary, it was less onerous for renderers than the general condition.
The Secretary of State was entitled to have a policy on the conditions that local authorities should generally include in authorisations, and, in drawing that policy to the authorities’ attention, he was not required to identify for them which subparagraph of section 7(2) gave them the power to impose the condition. The suggested condition in the instant case could be imposed either under section 7(2)(a) or (c), and the Secretary of State had been entitled to take the view that its imposition would be in the public interest.
Neil King QC and David Park (instructed by Nicholson Graham & Jones) appeared for the appellants; David Elvin QC and David Forsdick (instructed by the Treasury Solicitor) appeared for the respondent.
Sally Dobson, barrister
