Environment: Air pollution

Claimants representing operators of animal rendering plants - rendering 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 dismissedUnited Kingdom Renderers Association Ltd and another v Secretary of State for the Environment, Transport and the Regions: Queen's Bench Division (Administrative Court): Mr Justice Ouseley: 31 July 2001The claimants represented 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 was a prescribed process within the 1990 Act and, as such, an authorisation had to be obtained from the relevant local authority before the process could lawfully be carried on.

Section 7 of the 1990 Act provides for authorisations to be issued by the local authority.

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 not entailing excessive costs (BATNEEC) would be used to:l Prevent the release of prescribed substances into the air, or, where that was not practicable, reduce the release to a minimum and to render harmless any such substances so released; and,l 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) of the Act to the techniques and environmental options that are appropriate for 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 on the processing of animal remains and by-products and the control of certain prescribed processes in limiting air pollution.

Part II of the guidance note contained general guidance 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 if a breach took place but the operator had taken 'all reasonable steps and exercised all due diligence' to prevent the release of odours.The claimants sought judicial review of paragraph 13 of the Guidance Note (as amended), and a declaration that it was unreasonable, irrational and wrong in law.

The claimants contended, among other things, that the guidance was incompatible with 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 section 7(1)(a) and section 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.l Having considered 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] EGCS 61, both cases made it clear that an OBC was at least lawful under section 7(1)(c), which did not have to satisfy BATNEEC.

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.l 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 was 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.