Claimants representing operators of animal-rendering plants – Plants requiring authorisation of local authority – Conditions imposed upon authorisation – Secretary of State issuing guidance note on imposition of odour-boundary conditions – Whether guidance incompatible with BATNEEC test – Section 7(2)(a) of Environmental Protection Act 1990 – Claim dismissed
The claimants represented the operators of animal-rendering plants. The rendering process could give rise to the emission of offensive odours, and such plants were subject to the local air pollution control regime, set out in the Environmental Protection Act 1990. Rendering is a prescribed process within the 1990 Act, and, as such, an authorisation had to be obtained from the relevant local authority, under section 7 of the 1990 Act, before the process could lawfully be carried out. Section 7(1) provides that the authorisations should contain “such specific conditions as the enforcing authority consider appropriate for achieving the objectives in section 7(2)” (section 7(1)(a)), and “such other conditions as appear to the enforcing authority to be appropriate” (section 7(1)(c)).
The principal objective in the instant case was that contained in section 7(2)(a), namely that the best available techniques that did not entail excessive costs (BATNEEC) would be used to: (i) prevent the release of prescribed substances into the air, or, where that was not practicable, to reduce the release to a minimum and to render harmless any such substances so released; and (ii) to render harmless any other substances that might cause harm if released into the air. Section 7(11) of the 1990 Act provides that it is the duty of local authorities to have regard to any guidance given by the Secretary of State for the purposes of applying section 7(2) to the techniques and environmental options appropriate to any prescribed process.
In January 2000 the Secretary of State issued Guidance Note PG 6.1(00), which was supplemented, in March 2000, by Additional Guidance Note AQ 3(00). The guidance note provided advice upon the processing of animal remains and by-products and the control of certain prescribed processes in limiting air pollution. Part II contained general advice on various matters concerning the imposition of conditions under section 7(1) of the Act. Paragraph 13 contained guidance on animal rendering and provided advice to local authorities relating to the conditions to be imposed upon authorisations. In particular, it advised that “conditions should be imposed, preventing (rather than just minimising) the escape of offensive odour beyond the process boundary. In these cases, the specific technical conditions imposed to prevent such escapes should be supplemented, as a back-up measure, with a general condition (an odour-boundary condition) requiring emissions to be free from offensive odour outside the process boundary.” Paragraph 13 further provided that an operator would not be in breach of the authorisation where a breach had occured but the operator had taken “all reasonable steps and exercised all due diligence” to prevent the release of offensive odours.
The claimants sought judicial review of para 13 of the guidance note as amended, and a declaration that it was unreasonable, irrational and wrong in law. The claimants contended, inter alia, that the guidance was incompatible with both section 7(2)(a) of the 1990 Act and the statutory concept of BATNEEC. In particular they contended that the imposition of an odour-boundary condition (OBC) was inconsistent with sections 7(1)(a) and 7(1)(c). The claimants further contended that the Secretary of State had not demonstrated, or set out to demonstrate, any technical analysis for his guidance.
Held: The claim was dismissed.
1. An OBC was lawful under section 7(1)(c), which did not have to satisfy BATNEEC: Procurator Fiscal v Seed Crushers (Scotland) Ltd [1998] Env LR 586 and R v Secretary of State for the Environment,Transport and the Regions, ex parte Torridge District Council [1997] Env LR 557. An OBC was not precluded by section 7(1)(a), which did have to satisfy BATNEEC. There was no reason why an OBC could not be effective to achieve the BATNEEC objective.
2. The availability to an operator of a “due diligence” defence removed any incompatibility. It allowed an OBC to serve a useful role, supplementing and acting as a back up to section 7(1) conditions. There was no conflict between an OBC and section 7(1)(c) or section 7(1)(a) and BATNEEC. The Secretary of State did not have to demonstrate a technical analysis at this stage. No such analysis is required for OBCs to be compatible in principle, and any failure on the part of the Secretary of State to do so renders the guidance neither irrational nor unlawful.
Martin Kingston QC and David Park (instructed by Nicholson Graham & Jones) appeared for the claimants; David Elvin QC and David Forsdick (instructed by the Treasury Solicitor) appeared for the defendant.
Sarah Addenbrooke, barrister
