Key Facts
- •Appeal concerns land at Brighthams Farm in West Sussex, draining into the River Adur.
- •Land designated as a Nitrate Vulnerable Zone (NVZ) based on monitoring data.
- •Appellant (Mr. Nash) argued that monitoring data was unduly influenced by discharges from a wastewater treatment works (WWTW).
- •The Secretary of State's decision was made on behalf by the Environment Agency.
- •Appeal was a Type B appeal, challenging the identification of the water as polluted.
- •No land use modelling was performed to assess the agricultural contribution due to the NVZ size being smaller than what would be required to apply the model with confidence.
- •The Environment Agency relied on land cover data (60% agricultural) and a SEPARATE model (estimating 51% agricultural contribution).
- •The Tribunal found multiple evidential frailties in the Environment Agency's assessment, including inconsistencies in land use modelling, inadequate consideration of ammonia, and reliance on low-flow data which might skew results by emphasising point source contributions over diffuse agricultural contributions.
Legal Principles
Regulation 4(2) of the Nitrate Pollution Prevention Regulations 2015 requires the Secretary of State to monitor nitrate concentration and identify land contributing to pollution.
Nitrate Pollution Prevention Regulations 2015
Water is affected by pollution if the 95th percentile concentration exceeds 50 mg/l as NO3 or 11.3 mg/l as TIN.
Directive and Regulations
Regulation 6 affords a right of appeal on grounds that the relevant holding does not drain into identified polluted water, or drains into water that should not be identified as polluted.
Regulation 6
The Tribunal's task is to decide whether the Secretary of State was wrong to identify the water as polluted, considering the judgment of Cook v General Medical Council [2023] EWHC 1906 (Admin).
Cook v General Medical Council [2023] EWHC 1906 (Admin)
In NVZ designation, the test is whether agricultural sources make a significant contribution to pollution; contributions of the order of 17%-19% have been considered significant by the Court of Justice.
R. (Standley) & Ors (Environment and consumers) [1999] EUECJ C-293/97, Commission v Belgium (Environment & consumers) [2005] EUECJ C-221/03, PJ v Secretary of State for Environment, Food and Rural Affairs [2015] UKUT 207 (AAC)
Outcomes
The appeal is allowed.
The Tribunal found insufficient evidence to conclude that agriculture makes a meaningful contribution to pollution in the NVZ. The Environment Agency's reliance on monitoring data alone, without proper land use modelling and consideration of relevant factors (like ammonia), was deemed inadequate.