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10.12 pm
The Parliamentary Under-Secretary of State for the Environment (Mr. James Clappison): Hon. Members will have gathered that this is a matter of considerable interest to the constituents of my hon. Friend the Member for Westbury (Mr. Faber), who have complained of the smell from Fairfield Piggeries. It is self-evident, from the history that my hon. Friend outlined, that he has followed developments for some time with close interest and that he has been assiduous in representing his constituents' interests.
I congratulate my hon. Friend on securing this debate on the subject of Fairfield Piggeries. He clearly described what the piggeries consist of--they are a combined animal and vegetable rendering process. Such processes have the potential to cause severe local odour nuisance, and my hon. Friend described what happened in this case. It is clear that my hon. Friend, West Wiltshire district council and the Government are of one mind--that this odour problem must be sorted out. However, we have so far disagreed on the best means to bring that about.
Like all animal rendering processes, that at Fairfield Piggeries is subject to local air pollution control, which is a scheme for the prior approval of polluting processes, brought in by the Environmental Protection Act 1990, as my hon. Friend rightly said. Under the scheme, renderers are required to obtain an authorisation from their local authority to continue operating. In common with all process operators, renderers have a statutory right of appeal to the Secretary of State against, inter alia, any refusal by a local authority to issue an authorisation, and any of the conditions that have been included in any authorisation that is issued. In this case, West Wiltshire district council is the authorising body.
I shall deal first of all with my hon. Friend's concerns about the time that it is taking to redetermine this case, before moving on to explain the considerations that cases such as this raise and how the Secretary of State approaches them.
The operators of Fairfield Piggeries applied for an authorisation for their rendering processes in late 1992; they were refused by West Wiltshire district council in September 1993; they appealed against the council's refusal to the Secretary of State in March 1994 and,
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Notwithstanding the fact that the Secretary of State's decision was that stringent conditions should be included in the authorisation that he directed the council to issue, to bring about a rapid improvement in the long-standing odour problems at the site, the council decided to seek judicial review of that decision. In March this year, the High Court determined that the Secretary of State had failed to give adequate reasons for his decision, which was then quashed. The Secretary of State immediately embarked on a redetermination of the case, and the current position is that we expect a decision shortly. I shall say a little more about that in due course.
Understandably, my hon. Friend, West Wiltshire district council and the local people are concerned to see the case redetermined as rapidly as possible. Until there is a new decision, the council is effectively unable to take steps under the local air pollution control regime to have the process upgraded or shut down.
All that I can say is that my Department is extremely conscious of the urgency of the case and that we are doing our very best to reach a new decision as rapidly as possible.
To cast light on the matter, it may help if I explain to my hon. Friend that, in March, the High Court did not attack the Secretary of State for having upheld the appeal. It quashed the Secretary of State's decision because the letter did not adequately set out the reasons why he had upheld the appeal. I hope that my hon. Friend and West Wiltshire council are aware that the redetermined decision may be to uphold the appeal as before, and that it is not a matter of the High Court having told the Secretary of State that he must refuse the appeal. The Secretary of State will reach, as quickly as possible, whatever decision is right in the light of the inspector's report and all the other evidence before him.
I clearly cannot comment about the specifics of this particular case, because it is still before the Secretary of State for redetermination. However, I can make some observations, which I think will be helpful, about the policy considerations on which the case hinges, which I hope that those with an interest in the matter will find useful.
The first and most important policy consideration is that the Government are determined that animal renderers must improve their odour control, using the best available techniques not entailing excessive cost. A guidance note has been issued detailing the extensive odour control measures that the Secretary of State would expect existing or new processes to take, the aim being that there should be no smell at the process boundary.
Although the expectation is that an existing process that gives rise to smell problems would be authorised and required to upgrade along the lines set out in the process guidance note, it is, of course, possible for regulatory authorities to refuse to issue an authorisation at all. The Government would expect a refusal to be very much a last resort, and to be backed up by cogent evidence that the process operator is not able to mend his ways in the manner envisaged by the legislation.
Mr. Faber:
Can my hon. Friend confirm that part II of the Environmental Protection Act 1990--which deals
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Mr. Clappison:
I think that my hon. Friend is right about that. Part II, to which he referred, deals with waste management, and being a fit and proper person has an important role to play in that. Part I deals with the authorisations for air pollution control that we are talking about in this instance. The considerations in that regard are somewhat different, and directed toward avoiding the problems outlined by my hon. Friend. They are concerned particularly with the ability of the person controlling the operation to bring the problems to an end. I shall deal with that problem in a moment.
As I said, the Government expect refusals to be very much a last resort, and to be backed up by cogent evidence that the process operator is not able to mend his ways in the manner envisaged by legislation. Refusal is not at all common, but it is, of course, what happened in the case of Fairfield Piggeries.
The Environmental Protection Act--in a way, this deals with the point that my hon. Friend has just raised--envisages the possibility of refusal of an application for authorisation. Section 6 states:
When we do encounter refusals to grant authorisation, section 6(4) is usually cited by the enforcing authority as the reason, as was the case with West Wiltshire when it declined to authorise the Fairfield Piggeries process. All too often, however, the enforcing authority will tell the person concerned, effectively, "You have not complied with conditions in the past; therefore, we do not consider that you are able to comply with the conditions that we would include in any authorisation."
I am afraid that that is not the right way forward. The enforcing authority has to consider the applicant's ability to comply, not his track record. The track record is, of course, a useful indication, but it is usually far from being sufficient evidence in itself to justify taking away someone's livelihood--which is usually what is at stake in such cases. It is simply not good enough for an enforcing authority to say, "This applicant has operated with too many smell problems in the past; therefore he is not capable of sorting them out in the future."
It is the Secretary of State's practice--although not that of such enforcing authorities--to apply his mind to the test set by the legislation, that is, the applicant's ability to comply with the conditions that would be included in any authorisation. Often there is little or no evidence directly bearing on that question. Attitude and past performance may be pretty clear, but ability or otherwise is difficult to establish. In such circumstances, the Secretary of State's policy is to give the applicant the benefit of the doubt.
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"An application shall not be granted unless the enforcing authority considers that the applicant will be able to carry on the process so as to comply with the conditions which would be included in the authorisation."
In the Secretary of State's view, an enforcing authority should first ask itself, "What conditions would be included if this process were to be authorised?" and then, "Is the applicant able to comply with them?" focusing on the applicant's ability to comply.
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