Jeremy Lavis v The Secretary of State for Environment, Food & Rural Affairs
[2024] UKFTT 196 (GRC)
Christopher Godding v The Secretary of State for Environment, Food & Rural Affairs
5 March 2024
[2024] UKFTT 172 (GRC)
First-tier Tribunal
A farmer appealed being included in a special area to protect groundwater from pollution. He showed his farm's water mostly flows into a stream, not the groundwater, so the appeal was mostly successful. The decision highlights the importance of proving where water drains to in these cases.
Key Facts
- •Appeal concerns Lower Battlescombe Farm's inclusion in NVZ G83 (groundwater).
- •Appeal based on data suggesting the farm doesn't drain into polluted water (Type A and B appeals).
- •Appellant provided water sample data from a stream on the farm.
- •Secretary of State argued NVZ designation was based on groundwater, not surface water, data from multiple sites.
- •Appellant argued springs on the farm feed the stream, originating from deep aquifers.
- •Appeal decided without a hearing.
Legal Principles
Regulations 4(2), 5, and 6 of the Nitrate Pollution Prevention Regulations 2015 govern NVZ designation and appeals.
Nitrate Pollution Prevention Regulations 2015
Type A appeal: Relevant holding does not drain into identified polluted water.
Regulation 6(2)(a)
Type B appeal: Relevant holding drains into water that shouldn't be identified as polluted.
Regulation 6(2)(b)
Burden of proof lies on the appellant.
Implicit in the Tribunal's reasoning
In legal proceedings, a fact either happened or it did not; doubt is resolved by burden of proof.
Re. B (Children) [2008] UKHL 35
A judge must find for one side or the other, if it's more likely than not that something took place, it's treated as having taken place.
Re. B (Children) [2008] UKHL 35
Outcomes
Appeal allowed.
Sufficient evidence suggests the farm primarily drains into surface water, not the vulnerable groundwater; the amount draining into groundwater is de minimis.
Type A appeal upheld.
The evidence shows a probable drainage to surface water, discharging the burden of proof on the appellant.
Type B appeal dismissed.
Secretary of State provided sufficient evidence justifying the groundwater's designation as high-risk for nitrate pollution.
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