SYSTEMS AND RECORDS

Environmental permits contain numerous conditions, many of which are in a standard form. They will all require that you have systems in place to ensure that potential nuisances are controlled and that you keep records of those systems, which must include written operating instructions.

In the event of a complaint you will need to be able to demonstrate to the Agency that the systems are being properly operated. You can only do this if you have recorded what the system is and also the steps that have been taken to comply. The clearer and more comprehensive the records are the more likely you are to be able to demonstrate what you have done.

It is valuable at an early stage to convince the Agency that you are in control so that officers have confidence in your management and it is valuable at a later stage if there is an appeal against an Enforcement Notice or if you have to defend a prosecution.

If there are complaints you will have to be prepared for your systems to be criticised and scrutinised. It is your responsibility under your permit to review your systems if there are complaints or if there is an accident or incident and you will need to be able to show that you have done that. If you are operating your system properly and complaints persist you need to consider the possibility that the systems are somehow inadequate. That is the assumption that others will make. It is often difficult to be critical of your own approach and advice from a third party is useful. It is expensive to take expert advice but it can pay dividends. A fresh and expert eye on the subject can spot something that is going wrong and can alert you to new practices and procedures.

Modelling will sometimes be useful to enable you to assess whether it is worth while investing in a particular new system or item of equipment. It may, for example, enable you to judge whether a new ventilation system will make things better or worse for a complainant and so avoid a costly mistake.

It is your obligation to keep using best available techniques. The very fact that you have taken expert advice can be part of your defence and your system. It also means, where problems persist that you have someone on your side who is familiar with the situation and who you can turn to for advice. He or she can not only offer criticism but can also provide evidence that you are doing all that you can or, indeed, that the outcome you are achieving is acceptable.

STANDARDS OF OPERATION

You need to be sure that the standards that you are achieving are up to industry standards, so you need to keep yourself up to date by reading relevant journals and taking advice. This is true of units that do not need a permit as well as those that do. Although the legal requirement to use best available techniques does not apply, it is still sensible to do so, firstly to avoid complaints where possible and secondly to give yourself the best possible defence if a problem does arise.

“How to Comply with your Environmental Permit for Intensive Farming” published by the Agency is essential reading for all as it sets out what is expected of you to comply with your permit. If you are not doing at least the basics set out in there you can assume that in the event of a prosecution you will be convicted. If you can show that you have complied, it will go a long way to providing a defence or at least good mitigation. It might even stop the problem from occurring!

Make sure you contact the NFU or NPA for advice.

IF YOU DO NOT NEED A PERMIT

If you do not need a permit then the Agency is not your regulator and it will be your local Council that is responsible for dealing with odours, flies, dust and noise as statutory nuisance. The comments in this article about your obligations under a permit obviously do not apply, but the principles are the same. If there is a complaint about a nuisance you should still try to resolve it with your neighbours. If the Council get involved you will still need to show that you have the proper systems in place to demonstrate that you are using best practicable means to abate the nuisance and records will still play a vital role in ensuring that you can prove that.

If you do not manage to resolve the issue and you are served with an Abatement Notice please do not ignore it. It is often possible to appeal successfully against it or to negotiate it away, but timescales are tight. Once it has taken effect any future nuisance will be a criminal matter and the stakes will be much higher.

CONCLUSIONRegulation and scrutiny are hard to swallow, especially when there are so many other problems to deal with. They are however a fact of life and so too can complaints be.

The Environment Agency is a powerful regulator and it, or indeed local authorities, can make your life difficult and ultimately cost you money in terms of onerous obligations, fines and costs.

You can do a great deal to prevent complaints from happening and to control the situation when they arise, but it will need organisation. Good systems, good records and the patience of a saint are all called for!

PERMITS, PIGSAND POULTRY– What a Nuisance!

INTRODUCTION

Many pig and poultry operators, including those with modern well run units, suffer from complaints from neighbours at some time. Complaints are sometimes justified, sometimes they are not. They can be mischievous or malicious. In some cases a genuine mistake may have been made as to the cause of the problem or the reasonable level of expectation. Whatever the circumstances, complaints are always a problem. They are always costly in terms of management time, neighbourly relations and reputation and they always need to be dealt with.

Whether the unit is governed by an environmental permit, so that the problems may amount to a breach of permit conditions, or whether it is a smaller unit where they may amount to a statutory nuisance, the best tools at your disposal when complaints arise are systems, records and a cooperative attitude.

CAUSES OF COMPLAINTS

The usual subjects of complaints are noise, odour, dust or flies. They are all things that are on occasion difficult to control and they are all things that are, to a degree, subjective when it comes to measuring their impact. Something that all nuisances have in common is that, once a neighbour begins to be sensitised, it is very difficult to reverse that and complaints can spiral. It may be possible to avoid this by reacting promptly and positively when complaints are made.

HOW COMPLAINTS ARE MADE

If you are lucky, the first you will hear of a complaint will be directly from a neighbour. It is worth keeping open lines of communication, if you can, so that neighbours do feel that they can complain to you and that you will respond positively. This gives you an opportunity to investigate the complaint and its cause and resolve it without involving anyone else. You need to be open to the possibility that the complaint is justified and if it is, make real efforts to find and address the cause. If it is not justified, or if your unit is not the cause of the problem, then you need to record the situation and the circumstances and report back to the complainant.

Neighbours may, alternatively, complain directly to the Environment Agency if you have an Environmental Permit or to the Council if you are not regulated by a permit. If that happens a formal investigation

will begin. In the case of a permitted unit the Agency will assess whether what has happened amounts to a breach of the conditions on your permit. An investigation will inevitably lead to time and energy being diverted to dealing with it. If things are not handled well, it can lead to poor relations with the Agency as well as with the neighbours.

Where there are repeated complaints the Agency will give your neighbours a Residents Observation Log on which to record incidents which affect them and will give them an incident hotline number which is a number that operates 24 hours a day 365 days of the year. They will be advised to report the incident as soon as possible. Reports made late have little value as they cannot be investigated. By the same count it is important that you know about complaints quickly so that you can carry out your own prompt investigation. For this reason it is important to reach an arrangement with the Agency that it will let you know immediately when it gets a complaint.

The Agency is committed to working with communities and has guidance for its staff on the subject called “Working With Others” which deals with how it can do this. It does mean that it may invite comments from the public on matters of concern. Where there are serious continuing problems the Agency will sometimes encourage the setting up of a liaison committee for concerns to be aired. You would need to take a positive role in this if it does happen.

By whatever route the complaint is made and whatever the outcome make a clear and comprehensive note of all the details as you may not have heard the last of it. Although the particular incident may seem to have been resolved later complaints may mean that it is resurrected as part of later enforcement action.

You are obliged under your permit in any event to keep a complaints record and this applies however the complaints are reported to you.

It should not be overlooked that there is an obligation in the permit to notify the Agency promptly of certain matters including any

“significant adverse environmental effects” and it is an offence not to do so. If you receive a complaint and it is justified or if you are aware of a problem but there have been no complaints you need to consider whether you need to report it to the Agency. Sometimes if the Agency cannot prosecute for any other breach it will fall back on this one.

If there is a justified complaint but you do not think you are the cause then it may in practice fall to you to prove that you are not the cause and this can be time consuming and costly, particularly if you need to undertake modelling to do so.

PERSISTENT COMPLAINTS

The Agency is obliged to investigate complaints, including persistent ones. Because of the subjective nature of some of the causes of complaint it is worth agreeing with the Agency a protocol for the assessment of levels and their acceptability and if they notify you of a complaint you should take the trouble to investigate it yourself as soon as possible. It is only by doing this that you have a chance of later challenging any view that is taken by the Agency of the seriousness of the incident or of calibrating your assessment against that of the Agency. Smells for example are assessed on a scale of 1-6. You need to quickly discover what level of smell is assessed by officers as representing any particular level on the scale.

There comes a time when a complainant has made so many unreasonable complaints that the Agency will accept that he is a vexatious complainant. This time is likely to be a long time coming, though, and patience will be needed. You need to remain

cooperative throughout. You can assist the Agency to identify a vexatious complainant by giving it the information to establish that there really was no basis for the complaint. You will not achieve this by falling out with the Agency, though you may need to be firm to prevent things from dragging on indefinitely. The danger is that unjustified complaints do remain on your record and that in months or years to come it is not clear that the complaint was not justified. Consider writing to the Agency to put it on record that the complaint was not justified. Keep a copy of the letter for future reference.

The Agency does have a policy for dealing with vexatious complainants, but we were unable to find a copy on the website and requests to see it have not yet yielded results. As a matter of practice we know that they have agreements with some operators as to the degree of response that certain types of complaint from certain complainants will receive.

REMEDIES OPEN TO THE AGENCY

If the Agency is satisfied that there has been a breach of the permit it has a number of options open to it. The first is to seek your cooperation in addressing the problem and resolving it. It is well worth taking this opportunity to avoid the next step which is an Enforcement Notice. An Enforcement Notice is served on an operator where the Agency is satisfied that there have been breaches of the permit and it will set out, with a timetable, the steps which must be taken to rectify it. These steps can be expensive and onerous and whilst it is possible to appeal against it, within a limited timescale, that will not suspend the notice. Service of an Enforcement Notice does not prevent the Agency from prosecuting where it believes that there has been a breach and it will do so where it believes there have been serious or persistent breaches or a failure to heed a warning.

In each case the Agency has a duty to be satisfied that there has been a breach, but you would be wise if you are on the receiving end of enforcement action to question the evidence and approach. Officers do not always analyse the conditions or the evidence as a lawyer might and sometimes an allegation can be made where there has been no breach of the permit at all. For example, the standard condition relating to odour reads:

“Emissions from the activities shall be free from odour at levels likely to cause pollution outside the site, as perceived by an authorised officer of the Agency, 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 the odour.”

It is not unusual for residents and the Agency to regard this as having been breached simply because there is an odour. For the condition to have been breached, however, it is necessary for an authorised officer to have formed a reasonable opinion that the odour is likely to cause pollution AND for the operator to have failed to take the appropriate measures to prevent or minimise the odour. You should ask to see officers’ notes to assess what was witnessed or whether an officer witnessed an odour at all. An unverified complaint from a neighbour is not enough, nor is the case complete unless there is evidence that the steps have not been taken.

The NFU and NPA would like to thank Deborah Sharples for producing this guidance document. Deborah Sharples is a partner and the head of planning and environmental law at NFU Legal Panel Firm Hewitsons. Hewitsons’ specialist Agriculture Food and Rural Business team delivers timely, practical and commercial advice to rural clients nationally. It draws on the long commercial experience of its members who work in conjunction with other lawyers in the firm. The firm offers a broad range of services to the business community, private clients and others and has a commitment to rural matters which makes Hewitsons leaders in the field.