United Kingdom Renderers Association Ltd v Secretary of State for the Environment, Transport and the Regions

JurisdictionEngland & Wales
JudgeMR JUSTICE OUSELEY
Judgment Date31 July 2001
Neutral Citation[2001] EWHC 675 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date31 July 2001
Docket NumberCO/1163/2000

[2001] EWHC 675 (Admin)

IN THE HIGH COURT OF JUSTICE

(THE ADMINISTRATIVE COURT)

Royal Courts of Justice

Strand

London WC2

Before:

Mr Justice Ouseley

CO/1163/2000

The Queen On The Application Of United Kingdom
Renderers Association Limited
and
John Pointon Amd Sons Limited
and
The Secretary Of State For The Home Department

MR M KINGSTON QC and MR D PARK (MR RICHARDS for judgment only) (instructed by Nicholas Graham and Jones, London EC4N 6AR) appeared on behalf of the Claimants.

MR D ELVIN QC and MR D FORSDICK (MISS LIEVEN for judgment only) instructed by the Treasury Solicitor) appeared on behalf of the Defendant.

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(As Appeoved by the Court)

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Tuesday, 31st July 2001

MR JUSTICE OUSELEY
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Introduction

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1. After after an animal is slaughtered in an abattoir, the meat and offal for human consumption is separated from the inedible by-products. These by-products, such as hide, vital organs, bones and fat are collected by animal renderers for processing. The rendering process involves the crushing and grinding of the by-products followed by heat treatment to cook and dry the material. The melted fat or tallow is separated from solids by centrifugal spinning. The solids are ground into a powder such as meat and bone meal. Most tallow is used in food or soap production or in the oleochemical industries producing dyes, paints and pharmaceuticals. The rendering process is undertaken in increasingly complex and sophisticated plants most of the equipment of which is located within enclosed buildings which have an air extraction system involving odour control. Specific odour control systems are also used to extract and treat the high intensity odours from cooking and drying equipment.

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2. Rendering animal by-products has the potential to create highly offensive smells. It is a prescribed process which cannot be carried on without an authorisation issued by a local authority. Authorisations may be granted subject to conditions, provided that those conditions can be complied with. The Environmental Protection Act 1990 sets out the powers which govern the issue of authorisations and the conditions which can be imposed. The Secretary of State for the Environment, Transport and the Regions, has an appellate role in relation to refusals of authorisations and conditions imposed on authorisations granted by local authorities. The local authorities are obliged to have regard to any guidance which he may issue as to the techniques for preventing or minimising the release of harmful odours.

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3. In January 2000 the Secretary of State issued Process Guidance Note 6/1(100):

“as a guide to local enforcing authorities on the conditions appropriate for the control of air pollution in relation to animal by-product rendering processes…in order to achieve the objective set down in section 7(2)(a) of the Environmental Protection Act 1990.”

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4. This objective is the ensuring that, in carrying on the animal rendering process, the best available techniques not entailing excessive cost (“Batneec”) will be used for preventing or minimising the release of harmful odours. The introduction to the Note stated that:

“Part 2 of the Note contains general guidance on a number of matters.”

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5. Perceptively it added:

“The Note will also be of interest to operators of such processes.”

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6. On 15th March 2000, an amendment was made to a paragraph of the Process Guidance Note which had proved controversial both during the consultation period in 1999 on draft forms of the process guidance and indeed subsequent to its final production. This amendment appeared in an “Additional Guidance Note” AQ3(00).

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7. The United Kingdom Renderers Association represents the majority of British renderers who are affected by the Process Guidance Note. There are only 25 substantial rendering plants in the United Kingdom, many of which are specialist plants. John Pointon and Sons Limited are a Stoke-on-Trent rendering company. These two bodies are the Claimants in these judicial review proceedings by which they challenge the lawfulness of particular parts of the Secretary of State's Process Guidance Note. The United Kingdom Renderers Association has been closely involved in the consultation process on that Note undertaken in 1999, and in the attempts to negotiate versions which would have enabled the dispute to be resolved without resort to litigation.

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8. The Claimants object to those parts of the Process Guidance Note, including the amendment of March 2000, which recommend the imposition, on the generality of authorisations, of a condition which would make it an offence for offensive odours to be perceived by a local authority enforcement officer beyond the boundary of the process site, unless the processor were able to show that it had used all due diligence and taken all reasonable steps to prevent the escape of odour. The Secretary of State recommends investigative and enforcement action which is also objectionable to the Claimants.

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9. Those objectionable parts of the guidance note are said to be unlawful, in summary, because they conflict with the provisions of the EPA 1990, which require best available techniques, not entailing excessive cost, to be used in preventing or minimising the release of harmful odours and because they are irrational provisions which should not be recommended as conditions, or as a basis for the enforcement of any such conditions.

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The Statutory Framework

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10. Section 6(1) of the Environmental Protection Act 1990 prohibits the carrying on of a prescribed process “except under an authorisation granted by the enforcing authority and in accordance with the conditions to which it is subject”. Animal rendering is a process prescribed under section 6.9 of Schedule 1 to the Environmental Protection (Prescribed Processes and Substances) Regulations 1991 SI 472. Organic compounds and products of partial oxidation are substances prescribed in Schedule 4 for control under sections 2(5) and section 6 of the 1990 Act.

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11. Section 6(3) contains the powers available to an enforcing authority when considering an application for an authorisation. Animal rendering is currently regulated under the Local Air Pollution Control regime within Part 1 of the EPA, and the enforcing authority is the local authority. Section 15 provides for appeals to the Secretary of State by a person who is aggrieved by the refusal of an authorisation, or by conditions imposed by a local authority on an authorisation, or by a refusal to vary an authorisation under section 11.

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12. Section 7 deals with conditions. Section 7(1) sets out three empowering provisions for the imposition of conditions. It provides, so far as material:

“ (1) There shall be included in an authorisation-

(a) subject to paragraph

(b) below, such specific conditions as the enforcing authority considers appropriate, when taken with the general condition implied by subsection

(4) below, for achieving the objectives specified in subsection (2) below;

(b) such conditions as are specified in directions given by the Secretary of State under subsection (3) below; and

(c) such other conditions (if any) as appear to the enforcing authority to be appropriate;”

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13. This case is only concerned with conditions imposed under either section 7(1)(a) or under section 7(1)(c).

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14. Section 7(2)(a) sets out the objectives referred to in section 7(1)(a). It provides:

“Those objectives are-

(a) ensuring that, in carrying on a prescribed process, the best available techniques not entailing excessive cost will be used-

(i) for preventing the release of substances prescribed for any environmental medium into that medium or, where that is not practicable by such means, for reducing the release of such substances to a minimum and for rendering harmless any such substances which are so released; and

(ii) for rendering harmless any other substances which might cause harm if released into any environmental medium;”

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15. There are other objectives set out in section 7(2)(b) to (d), but they are not material.

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16. The provision for the general condition in section 7(4) reads:

“Subject to subsections (5) and (6) below, there is implied in every authorisation a general condition that, in carrying on the process to which the authorisation applies, the person carrying it on must use the best available techniques not entailing excessive cost-

(a) for preventing the release of substances prescribed for any environmental medium into that medium or, where that is not practicable by such means, for reducing the release of such substances to a minimum and for rendering harmless any such substances which are so released; and

(b) for rendering harmless any other substances which might cause harm if released into any environmental medium.”

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17. The environmental medium relevant to local authority control is air: Section 7(5). Section 7(6) deals with the interaction between the implied general condition from section 7(4) and specific conditions imposed under section 7(1). It reads:

“The obligation implied by virtue of subsection (4) above shall not apply in relation to any aspect of the process in question which is regulated by a condition imposed under subsection (1) above.”

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18. Section 7(8) provides a further power to impose conditions limiting the amount or composition of any substance produced by, or utilised in, the process and requiring advanced notification of proposed changes in the manner in which the process is carried on.

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19. Section 7(10) makes it clear that the concept of “Batneec” includes:

“(in addition to references to any technical means and technology) references to the number, qualifications, training...

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