DE Smith v The Secretary of State for the Environment, Food and Rural Affairs

20 September 2023

[2023] UKFTT 789 (GRC)

First-tier Tribunal

A farmer appealed because his land was included in a polluted area, meaning rules about fertilizer and livestock apply. The government showed that even though there was a past mistake in defining the polluted area, the new, more accurate way of defining it still included the farm. Therefore, the appeal was rejected.

Key Facts

•Appellant owns Crown Inn Farm, Sheffield, designated as a relevant holding within a Nitrate Vulnerable Zone (NVZ).
•Respondent (Secretary of State) issued a notice designating the land as part of NVZ S261.
•Appellant appealed the designation under regulation 6 of the Nitrate Pollution Prevention Regulations 2015.
•Appellant argued his land drains into water that should not be identified as polluted.
•Appellant submitted expert evidence from Hafren Water suggesting initial incorrect designation and improved monitored levels.
•Respondent provided hydrographic evidence and maps supporting the designation.
•Respondent conceded a 2008 error in designation based on then-current methodology but justified the current designation using a 2012 methodology.
•The 2012 methodology considers the worst-performing tributary in designating a water body.

Legal Principles

Council Directive 91/676/EEC requires Member States to designate Nitrate Vulnerable Zones (NVZs) to protect water from agricultural nitrate pollution.

Council Directive 91/676/EEC

UK Nitrate Pollution Prevention Regulations 2015 implement the UK's obligations under the Nitrates Directive.

UK Nitrate Pollution Prevention Regulations 2015

Regulation 6 of the 2015 Regulations provides for appeals on two grounds: (a) the holding does not drain into identified polluted water; or (b) the water is not polluted.

Regulation 6 of the 2015 Regulations

The Tribunal applies the balance of probabilities standard of proof.

UKFTT-GRC 2023 789

Proportionality of restrictions on agricultural holdings, even if only contributing a small percentage to pollution, is upheld.

R v Secretary of State for the Environment and Another, ex parte Standley and Others; EC v Belgium

Outcomes

Appeal dismissed.

Respondent's evidence, based on the updated 2012 methodology, demonstrated that appellant's land drains into water properly identified as polluted.

DE Smith v The Secretary of State for the Environment, Food and Rural Affairs

Key Facts

Legal Principles

Outcomes

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