United Kingdom Renderers Association Ltd. & Anor v Secretary of State for the Environment Transport & Regions

A statutory process guidance note is not unlawful merely because it recommends a condition capable of being imposed under more than one statutory power, or because the condition overlaps with an implied statutory condition. A Secretary of State may adopt a general policy and advise local authorities to include a qualified odour-boundary condition. Each authority must still consider every application and condition on its individual merits. Guidance must not fetter that discretion. A condition requiring no offensive odour beyond the process boundary is lawful where the operator may avoid breach by showing use of the best available techniques not entailing excessive cost (BATNEEC), or an equivalent reasonable-steps and due-diligence standard. The guidance did not require an absolute prohibition in every case.

The appellants, representing rendering operators, challenged the lawfulness of guidance issued by the Secretary of State concerning authorisation conditions for animal-rendering processes. The guidance recommended conditions preventing offensive odours crossing the process boundary, supplemented by a qualified odour-boundary condition allowing an operator to show that all reasonable steps and due diligence had been used.

Ouseley J. rejected the challenge. On appeal, the appellants argued that the Secretary of State had exceeded his statutory powers, bypassed the BATNEEC requirement, recommended a condition under an inappropriate provision, and unlawfully fettered local authorities' discretion. The central issue was whether the guidance and the qualified condition were legally permissible.

Disposition

The appeal was dismissed. The qualified odour-boundary condition and the Secretary of State's guidance were lawful. The appellants were ordered to pay the respondent's costs, subject to detailed assessment if not agreed. Permission to appeal to the House of Lords was refused.

1. Statutory powers. Under the Environmental Protection Act 1990, an enforcing authority may refuse an application where operation of the process would risk offensive odours crossing the process boundary and refusal is considered undesirable. The Secretary of State has a corresponding power on appeal. A general policy based on that risk is permissible, but the authority must consider each application and each proposed condition on its merits.
2. Conditions and BATNEEC. The Secretary of State may direct authorities under section 7(3) as to conditions to be included in authorisations. Such a direction would bind authorities through section 7(1)(b). The condition in question could also be imposed under section 7(1)(a) or (c). The Secretary of State was not required to identify the precise enabling paragraph in guidance.
3. Qualified condition. A condition requiring prevention of odour beyond the boundary, subject to proof that BATNEEC had been used, was lawful. The phrase requiring all reasonable steps and due diligence was accepted as imposing no different test. Using different wording would have been preferable, but did not invalidate the guidance.
4. Interaction with the implied condition. Although the specific condition substantially repeated the general condition implied by section 7(4), together with section 25, section 7(6) made the general condition inapplicable to the regulated aspect. The specific condition was less onerous because it operated only at the process boundary and could usefully draw the obligation to operators' attention.
5. Discretion and feasibility. The guidance, read as a whole, recognised individual circumstances and did not require an absolute prohibition where that was infeasible or undesirable. It allowed exceptions, including where odour would be unlikely to cause harm. The evidence provided a sufficient basis for advising that a qualified condition was desirable in the generality of cases.

• Court of Appeal (Civil Division) — dismissed the appeal and refused permission to appeal to the House of Lords.
• High Court — Ouseley J. rejected the appellants' challenge to the lawfulness of the Secretary of State's process guidance note.