Odour emissions and controls have long been enshrined as conditions within environmental permits and planning consents for waste management facilities. Usually, depending on waste inputs, odour can very quickly become a contentious issue with regulators.
Facilities that tend to incur the most problems are landfills and those accepting food and green waste for composting, especially sites that are open to the air, e.g. windrowing. Complaints from residents and neighbouring land users are almost inevitable and it is often the case that once an odour nuisance is reported the local authority and the Environment Agency / Natural Resources Wales get involved and can result in a joint attack on an operator of a waste facility.
There are principally two enforcement mechanisms that are adopted by regulators;
The Environmental Protection Act 1990 – s79, states;
‘It shall be the duty of every local authority to cause its area to be inspected from time to time to detect any statutory nuisances which ought to be dealt with. Where a complaint of a statutory nuisance is made to it by a person living within its area, to take such steps as are reasonably practicable to investigate the complaint.’
If a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, in the authority, which includes smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance, the local authority shall serve an abatement notice imposing all or any of the following requirements—
(a) requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence;
(b) requiring the execution of such works, and the taking of such other steps, as may be necessary for any of those purposes.
The notice shall specify the time or times within which the requirements of the notice are to be complied with.
An operator can appeal an abatement notice on the following grounds contained in Regulation 2 of the Statutory Nuisance (Appeals) Regulations 1995:
a. That the abatement notice is not justified;
b. That there has been some informality, defect or error in, or about the abatement notice;
c. That the authority has refused unreasonably to accept compliance with alternative requirements or that the requirements of the abatement notice are otherwise unreasonable in character or extent, or are unnecessary;
d. That the time, or, where more than one time is specified any of the times, within which the requirements of the abatement notice are to be complied with is not reasonably sufficient for the purpose;
e. That best practicable means were used to prevent, or to counteract the effects of, the nuisance.
Environment Agency / Natural Resources Wales
Environmental Permitting (England and Wales) Regulations 2016 makes provision for the regulation of waste facilities in accordance with an environmental permit. As a standard condition an operator is required to;
‘manage and operate activities in accordance with a written management system that identifies and minimises risks of pollution, including those arising from operations, maintenance, accidents, incidents, non-conformances, closure and those drawn to the attention of the operator as a result of complaints’
The standard odour condition states;
‘Emissions from activities shall be free from odour at levels likely to cause pollution outside the site, as perceived by an authorised officer, unless the operator has used appropriate measures, including, but not limited to, those specified in any approved odour management plan, to prevent or where that is not practicable to minimise odour.’
Records demonstrating compliance with the management condition as well as with the standard odour condition should be kept for a minimum of six years.
Watts Legal solicitors recently acted on behalf of a green-waste composting operator that had been served with an abatement notice. The business has been established since 2003 through farm diversification. The operation had grown to such a size by 2010 that it was necessary to relocate to more suitable premises and a planning consent was obtained for the activity to be conducted at a new site. The acceptance and preliminary shredding would occur outside and the composting process would take place within an enclosed building that was purpose built.
Residents mounted a campaign against the company with hundreds of complaints being logged with the local authority and the Environment Agency. DEFRA guidance suggests that when there is an environmental permit in place the Environment Agency should be the primary regulator, however, the local authority is still bound by its duty to investigate any complaints and if it is satisfied that there is a statutory nuisance an abatement notice should be served. Whilst this is duplicitous regulation the law permits a dual approach to be taken by regulators.
There is an ‘odour scale’ used by regulators to determine if there is a malodour;
0. No odour
1. Very faint odour (need to inhale into the wind to smell anything)
2. Faint odour (you can detect an odour when you inhale normally)
3. Distinct odour (there is clearly an odour in the air as you leave
your car or enter the area)
4. Strong odour (a bearable odour but strong, you could stay in the
area for some time)
5. Very strong odour (unpleasantly strong, you will want to leave the
6. Extremely strong odour (likely to cause nausea and a strong need to remove yourself from the odour immediately)
The Environment Agency conducted several site visits and embarked upon an intensive odour monitoring audit. The results of the monitoring established that there was no odour resulting in a breach of permit conditions, i.e. there was no odour above 2 on the scale. The operator had implemented an odour management plan (“OMP”) and in the spirit of continual improvement was more than prepare to make any amendments the Agency considered appropriate to enhance the already rigorous systems and procedures in place to control odour at the facility.
The local authority however was not satisfied that the Agency and the operator was doing enough as the complaints, which had been confirmed as unfounded by the Agency, continued to be made by residents and other local businesses. Therefore, the local authority served an abatement notice, which the operator appealed to the Magistrates’ court.
The key grounds of the appeal included;
(1) The service of the Abatement Notice was not justified on the grounds that the Appellant’s activities had caused a statutory nuisance and that it was likely to recur.
(2) The Appellant was using best practical means to prevent or counteract the effect of the purported nuisance.
(3) The Notice was defective on the grounds that it failed to specify the steps to be taken, and/or the use of the Abatement Notice procedure, was in the circumstances wholly unreasonable.
The operator in this case had obtained accreditation to PAS100, which is independently assessed as well as being endorsed by regulators. The underpinning policy in respect of recycling green-waste focusses on;
“Efforts to significantly reduce the millions of tonnes of biodegradable waste that are landfilled every year in the UK. The composting of biodegradable wastes prior to their landfill helps reduce the generation and emissions of methane. This benefit is maximised when composted material is permanently diverted from landfill and is of sufficient quality for supply to diverse markets.”
On the strength of the operator’s arguments the local authority eventually agreed a compromise without recourse to the courts, whereby the operator proposed to submit a planning application to enclose the entirety of the composting operation to further control and treat emissions of odour from the recycling activity. Whilst the local authority, environmental health department, agreed to this course of action, when the planning application was made it objected! The operator is now working on further specifications of the proposed building to satisfy the local authority that its proposal not only represents a significant financial investment, but also a commitment to working with all regulators. This matter is not yet over and only time will tell if the planning will ultimately be granted.
It is absolutely imperative that there is sufficient infrastructure and capacity in the UK’s waste and resource management sector to deal with waste arising’s. Landfill is simply not viable and is time limited. Moving up the Waste Hierarchy is a mandatory requirement, therefore the planning and permitting regime should be sufficiently robust and supportive of waste operators making financial investments and operating activities without the constant threat of enforcement action – otherwise who will manage the millions of tonnes of waste that is produced annually in the UK?!