AQ Notes (additional guidance notes on local authority industrial pollution control issues)
AQ3(03)
ADDITIONAL GUIDANCE FROM THE DEPARTMENT FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS AND THE WELSH ASSEMBLY GOVERNMENT
ANIMAL RENDERING PROCESSES
This additional guidance note has been issued by the Department and the NAW at the suggestion of the UK Renderers' Association. The following are some notes on aspects of the recent Court of Appeal judgement (referred to below) which may be helpful to authorities. However, they do not constitute a legal interpretation of that judgement and authorities are advised to rely on the original text of the judgement for any interpretation issues.
Local authorities will be aware that paragraph 13 of Process Guidance Note PG6/1 (00)1 (as amended by an Additional Guidance Note AQ3 (00)) was the subject of judicial review which concluded with the judgement issued by the Court of Appeal on 23 May 2002 - case number C/2001/2094. (The judgement can be found on the internet: www.courtservice.gov.uk/judgmentfiles.) The claim was brought by the United Kingdom Renderers Association and the Stoke-on-Trent based rendering company John Pointon & Sons Ltd. The claimants challenged the lawfulness of parts of the Guidance and in particular the provisions recommending the imposition on the generality of authorisations of a odour boundary condition (as defined below).
In general terms, paragraph 13 of Guidance Note PG6/1(00) provides that in the case of animal rendering "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". In deciding whether and how those conditions should be imposed, the authority needs to have regard to the individual circumstances in each case. The guidance also provides that there shall notbe a breach of that condition in circumstances where the "operator can show that he or she took all reasonable steps and exercised all due diligence to prevent the release of offensive odour".
The Court of Appeal concluded, in dismissing the appeal that they "saw nothing legally objectionable either in the imposition of a qualified odour boundary condition by authorities or in the Secretary of State advising them to do so in the generality of cases".
With reference to the claimants' allegation that paragraph 13 failed to mention the use of best available techniques not entailing excessive cost (BATNEEC), attention is drawn to the following issues:-
1. Both the High Court and the Court of Appeal's judgements relied upon the comments made in General Guidance Note GG1 (91)2. The introductory section to GG1(91) provides that "local authorities are statutorily obliged to include conditions in any authorisation that they issue which are designed to ensure that the processes are operated using BATNEEC to prevent and minimise emissions of prescribed substances and to render harmless any substance that may be emitted3".
2. The introductory section of PG6/1(00) confirms that in considering BATNEEC, local enforcing authorities will need to have regard to the individual circumstances in each case. It further provides that "individual circumstances may make alternative BATNEEC judgements and conditions (other than those set out in the guidance), appropriate".
3. Accordingly, both the statutory guidance and the Court of Appeal judgement confirm that in considering any condition that ought to be included in authorisations (including an odour boundary condition), BATNEEC requirements should be taken into account. Furthermore, the Court of Appeal provided (paragraph 12 of the judgement) that "Given that there is no legal objection to a policy of refusing authorisations unless the emission of offensive odours beyond the process boundary will be avoided, we find it difficult to see why there should be a legal objection to the grant of authorisations subject to a condition that the emission of offensive odour beyond the process boundary must be avoided unless the best available techniques not entailing excessive costs had been used to avoid such emissions. One can describe such a condition as a qualified odour boundary condition.".
4. The Court of Appeal concluded that although the Secretary of State had failed to expressly refer to the use of BATNEEC in paragraph 13(iii) of Guidance PG6/1, the Guidance provided that there would not be a breach of the odour boundary condition if the operator could show that he/she "took all reasonable steps and exercised all due diligence to prevent the release of odours" which had the same effect as the inclusion of a reference to BATNEEC. The Court of Appeal further explained that the Secretary of State did not intend to impose any different test from that implicit in the statutory phrase (referring to BATNEEC) and the fact that such phrase had not been used did not make the Guidance illegal.
In view of the above, where local authorities are drafting an odour boundary condition in line with the provisions in paragraph 13(iii) of PG6/1(00), they should have regard to the following:
a) include the phrase: "it shall not be a breach of the condition in a particular case if the operator can show that he or she took all reasonable steps and exercised all due diligence to prevent the release of offensive odour", and
b) include a qualification of the meaning of "due diligence", confirming (by means of a footnote or otherwise), that the use of these words in the odour boundary condition means that there shall not be a breach of the condition if the operator can show that he/she employed the BATNEEC.
Accordingly, any emission of offensive odour where the operator can show that he/she employed BATNEEC ought not to give rise to the authority issuing proceedings against the operator for the breach of an odour boundary condition.
AEQ/Defra
13.02.03
1 Process Guidance Note 6/1 (00). Issued in January 2000.
2 General Guidance Note 1 (GG1 (91))-" Introduction to Part I of the Environmental Protection Act 1990". Issued in April 1991.
3 An explanation of the meaning of BATNEEC is to be found in paragraphs 20 to 32 of GG1(91).
Page last modified
17 January, 2007
Page published 19 February 2003