Responsibility for determining appeals under the local air pollution control regime was transferred from the Secretary of State to the Planning Inspectorate last September, although he reserved the right to retrieve certain cases for his own decision (ENDS Report 271, p 38 ). The first two appeals determined by the Inspectorate at the end of last year suggest that the consistent line which the Department of the Environment, Transport and the Regions (DETR) sought to apply through the appeals system may not be achieved so readily in future.
Both cases involved processes which have been attracting public complaints about odours for many years. The case which went against the appellant involved Saltbrook Foundry, operated by G Clancey Ltd in Dudley.
Clancey's had appealed against a notice varying its authorisation which was served by Dudley Metropolitan Borough Council in October 1996. The issue in dispute was a condition that "all emissions shall be free from offensive odour outside the process site boundary."
The same condition has featured in earlier appeals, and the DETR had responded by issuing guidance clarifying how odours should be controlled. Its preference is for the use of specific authorisation conditions addressing odour sources and other contributory factors such as housekeeping, operating practices and procedures for responding to complaints.
However, the DETR also accepted that local authorities are "not precluded" from imposing the condition set by Dudley council where the relevant process guidance note says that freedom from odour beyond the process boundary should be an "aim". But in 1995 it issued guidance that in such cases the condition should be used only in "exceptional" circumstances.
The DETR did not attempt to spell out when circumstances might be "exceptional" until mid-1996 after a couple of troublesome appeals. Such circumstances might occur, it said, when a works was "in extremely close proximity to residential or other inhabited premises."
Last April, however, this approach was ruled as too restrictive by the High Court when it quashed the Environment Secretary's decision in an appeal involving an animal rendering business, Peninsular Proteins. The court ruled that other factors such as the height of emissions, the prevailing winds, the density and distribution of the affected population, and the offensiveness of the odour and the frequency of its occurrence were also factors to be taken into account (ENDS Report 267, pp 10-12 ).
The DETR has yet to redetermine its decision in the Peninsular Proteins case. But the ruling was influential in the Clancey's case, where the inspector took into account a series of factors other than the proximity of housing in deciding that the circumstances were "exceptional".
Clancey's foundry mostly produces ferrous castings for the motor industry. Its main products are camshafts, output of which has quadrupled since 1993 to 40,000 per week. The site operates round the clock during the working week, with some weekend shifts. Clancey's outstanding export performance has been recognised by a Queen's Award - but its neighbours have paid a heavy price.
The foundry has houses right up to its boundary in the direction of the prevailing wind, and a total of 800 homes within 750 metres. Complaints about odours from the works have increased with output, rising from an annual average of 30 in the period 1990-93 to 80 per year in 1994-96.
Two of the site's neighbours told the appeal hearing that they experienced odour nuisance for 60% of the time. Another couple said that the nuisance was almost constant during fine weather, and had recently become horrendous. Residents were unable to open windows or use their gardens, and complained of being put off their food. House prices around the works were claimed to be the lowest in the area. The hearing was also told that Clancey's customers such as BMW promoted an environment-friendly image for their cars but seemed unaware of the pollution being caused by their supplier.
The company, however, told the hearing that there was nothing "exceptional" about the local circumstances to warrant the condition on odours. The condition would also entail "excessive cost" because it could only be met by installing an incinerator at a cost of £1.5 million, possibly supplemented with a chemical scrubber.
Clancey's also brought the "sectoral affordability" argument into play. It said that its operations most closely resembled two industrial sectors whose recent profitability had been 4.6% and 3.9% - unimpressive margins which would certainly have called into question the firm's ability to pay.
Dudley council drew on the High Court's decision in the Peninsular Proteins case to argue that, once "exceptional" circumstances were shown to prevail, it was actually obliged by section 7(1)(c) of the Environmental Protection Act 1990 to impose whatever conditions it felt appropriate to prevent harmful releases, even if the techniques needed to achieve this might entail "excessive cost".
The council went on to set out several criteria which made the local circumstances "exceptional". In addition to the proximity of homes, these included Clancey's long working hours, the massive recent increase in production and the long history of justified complaints. The company had also been "recalcitrant", failing to reply to correspondence, missing the deadline for submitting an upgrading programme by 16 months and eventually sending in inadequate proposals, and spending no money on abatement since 1994, when it had made a token increase in stack heights.
Clancey's economic case was also challenged. The council argued that the firm's sectoral affordability arguments held little water when its latest accounts showed a pre-tax profit of 17% on a £32 million turnover. The £1.5 million cost of an incinerator was therefore not excessive, while the operating cost - up to £70,000 for support fuel and electricity to power a fan - would put 2p at most on the price of a camshaft.
Delivering his decision, the inspector accepted that the circumstances outlined by the council were "plainly sufficient" to be regarded as "exceptional". He visited five local foundries and, while detecting odours downwind of most, felt that their local circumstances could not be compared with Clancey's.
Upholding the contested odour condition, the inspector accepted that the company had been "recalcitrant" in the face of many warnings dating back to 1989. He also concluded that the cost of an incinerator would not be excessive in the light of the firm's profitability, and refused to delete the council's April 1997 deadline for complying with the condition.
Clancey's is understood to be improving its fume capture arrangements and installing ducts to an abatement plant. It has yet to inform the council whether this will be an incinerator or chemical scrubber, or both, but is under pressure to complete the work speedily because of the April 1997 deadline.
The decision will not have made the DETR's task of re-determining the Peninsular Proteins' appeal any easier. And it may well encourage other local authorities to adopt bolder interpretations of what constitutes "exceptional circumstances" in dealing with processes causing odour problems.
The second recent appeal decision is of a different order. It concerned the refusal of Staffordshire Moorlands District Council to vary an authorisation to allow Gilbert's Animal By-Products to double throughput at its rendering process.
The inspector dealt somewhat peremptorily with the case in upholding the appeal subject to some additional conditions, and in places did not follow the law or DETR guidance closely.
A rare consolation for the DETR is that both appeals were determined in less than four months. This is several times better than its own decision times, and if sustained should ensure that neither businesses nor the public will suffer the consequences of lengthy delays.