P Nash (trading as RG Nash & Sons) v Secretary of State for the Environment, Food & Rural Affairs
[2024] UKFTT 584 (GRC)
AC Atkin v The Secretary of State for the Environment, Food and Rural Affairs
20 September 2023
[2023] UKFTT 788 (GRC)
First-tier Tribunal
A farmer appealed because his land was declared part of a pollution-control area. He said his farm only contributed a small amount (7-10%) to the pollution. The judge said even small contributions matter when protecting the environment, and dismissed the farmer's appeal.
Key Facts
- •Appellant owns Allandale Farm in Brinsley, Nottingham, designated as a relevant holding within a nitrate vulnerable zone (NVZ).
- •Respondent (Secretary of State) issued a notice designating the land as within NVZs S316 and EL149.
- •Appellant appealed, arguing the land drains into water that shouldn't be identified as polluted (pursuant to regulation 6(2)(b) of the 2015 Regulations).
- •Appellant's expert evidence suggested agricultural contribution to nitrate pollution was insignificant (7-10%).
- •Respondent's evidence showed agricultural contribution of 7-10%, with over 50% of the catchment area being agricultural land.
- •The appeal focused on whether a 7-10% contribution to nitrate pollution is 'significant' under the Nitrates Directive.
Legal Principles
Council Directive 91/676/EEC (retained EU law) requires Member States to designate nitrate vulnerable zones (NVZs) where water is or could be affected by agricultural nitrate pollution.
Council Directive 91/676/EEC
UK Nitrate Pollution Prevention Regulations 2015 implement the Directive, setting limits on nitrogen application and creating a right of appeal against NVZ designation.
UK Nitrate Pollution Prevention Regulations 2015
Appeals against NVZ designation are limited to two grounds: (a) the holding doesn't drain into identified polluted water; (b) the water shouldn't be identified as polluted.
Regulation 6(2) of the 2015 Regulations
The burden of proof lies on the appellant to show the Secretary of State's decision was wrong, either through incorrect methodology or an outcome not in line with the Directive's objective.
Case law interpretation of the 2015 regulations
The threshold of 'significance' in agricultural contribution to nitrate pollution isn't determined by a fixed percentage but requires a wider assessment of circumstances, including land use and all pollution sources.
Case law interpretation of the Nitrates Directive
Outcomes
Appeal dismissed.
Appellant failed to demonstrate the respondent's methodology was incorrect or that a 7-10% agricultural contribution to nitrate pollution is insignificant, considering the wider context and case law.
NVZ notice confirmed.
Respondent's evidence, based on sound modelling and methodology, established a 7-10% nitrogen load from agriculture, deemed significant in the context of the Nitrates Directive.
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