DE Smith v The Secretary of State for the Environment, Food and Rural Affairs
[2023] UKFTT 789 (GRC)
Martin David Boynton v The Secretary of State for the Environment, Food and Rural Affairs
20 September 2023
[2023] UKFTT 787 (GRC)
First-tier Tribunal
A farmer appealed because his land was labeled as polluting a nearby river. The government showed that even though there are no streams on his farm, rainwater can still run off into the river, especially during heavy rains. Because the farmer couldn't prove otherwise, the label stuck.
Key Facts
- •Martin David Boynton appealed a designation of his Hildersley Farm as falling within a nitrate vulnerable zone (NVZ).
- •The designation was made under the Nitrate Pollution Prevention Regulations 2015, implementing EU Directive 91/676/EEC.
- •Boynton argued his land did not drain into polluted waters, based on the absence of watercourses on his farm and implemented environmental measures.
- •The respondent (Secretary of State) presented hydrographic evidence showing water from Boynton's land contributes to the NVZs, even through subsurface drainage during high rainfall.
- •The appeal was heard on the papers.
Legal Principles
EU Directive 91/676/EEC requires Member States to designate nitrate vulnerable zones to protect water from agricultural pollution.
Council Directive 91/676/EEC
The UK Nitrate Pollution Prevention Regulations 2015 implement the Directive's requirements in England.
Nitrate Pollution Prevention Regulations 2015
Regulation 6 of the 2015 Regulations allows appeals only on grounds that the holding doesn't drain into identified polluted water, or that the water isn't polluted.
Nitrate Pollution Prevention Regulations 2015
The burden of proof lies on the appellant to show the Secretary of State's decision was wrong.
Case law precedent (implied)
Outcomes
The appeal was dismissed.
The respondent's hydrographic evidence demonstrated that water from the appellant's land contributes to the designated NVZs, even in the absence of visible watercourses on the land itself. The appellant failed to provide sufficient evidence to contradict this.
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