Tribunal Decides on NVZ Designation in Godding v Secretary of State Case

Citation: [2024] UKFTT 172 (GRC)
Judgment on

Introduction

The case of Christopher Godding v The Secretary of State for Environment, Food & Rural Affairs is a decisive matter before the UK First-tier Tribunal (General Regulatory Chamber) concerning the designation of Nitrate Vulnerable Zones (NVZs) in the UK. The case outlines an appeal process under the regulatory framework addressing agricultural pollution and environment protection particularly concerning nitrates in groundwater.

Key Facts

The appellant, Mr. Christopher Godding, owns Lower Battlescombe Farm, which was proposed to be included within NVZ No. G83, indicating a vulnerability to nitrate pollution in groundwater. The Secretary of State for Environment, Food & Rural Affairs served a notice under Regulation 4(2) of the Nitrate Pollution Prevention Regulations 2015, necessitating the monitoring of nitrate concentration in freshwaters and associated land designation.

The case was decided without a hearing and centered around two grounds: that Godding’s holding either (a) does not drain into water identified as polluted (Type A appeal), or (b) drains into water which should not be identified as such (Type B appeal). The evidence presented included water sample analyses from the farm indicating low nitrate and ammonia concentrations, as well as detailed information about the sampling methods and the location.

The following legal principles were applied in adjudicating upon this matter:

  • NVZ Designation Process: The role of the Secretary of State in monitoring and designating NVZs under the Nitrate Pollution Prevention Regulations 2015.
  • Burden of Proof: As observed by Lord Hoffman in Re. B (Children) [2008] UKHL 35 and Baroness Hale, which describes the binary nature of legal findings and the implications of the burden of proof on the parties involved.
  • Standards of Evidence: The adequacy of the evidence provided by the appellant to discharge the burden of proof, considering practicality and likelihoods without the need for direct expert opinion.
  • Regulations Interpretation: That the term ‘drain’ within the regulations implies a significant, not de minimis, contribution to the identified water pollution concern.

The Tribunal relied on established jurisprudence for the notion of burden of proof and standards for establishing facts in legal proceedings, ensuring that the appellant’s evidence was considered within the correct legal framework.

Outcomes

The Tribunal allowed the Type A appeal, finding that it was more likely than not that Godding’s farm drained into surface water rather than the vulnerable groundwater, based on the existence of springs, water flow directions, and water sample analysis. This led to the judgment that the farm did not significantly contribute to the nitrate vulnerability of the designated groundwater NVZ.

Conversely, the Type B appeal was dismissed, as the Tribunal agreed with the Secretary of State’s detailed technical analysis justifying the overall groundwater vulnerability designation and the irrelevance of the single farm’s data to the larger analytical context employed by the Secretary of State.

Conclusion

In the case of Godding v The Secretary of State for Environment, Food & Rural Affairs, the Tribunal provided clarity on the interpretation of regulations concerning the designation of NVZs, particularly concerning the evidence required to substantiate whether a holding ‘drains’ into vulnerable waters. The key outcomes underline the importance of comprehensive evidence when challenging an environmental designation and underscore the rigidity of the binary legal system in deciding appeals wherein the burden of proof plays a critical role. The decision affirms the comprehensive approach of the Secretary of State in applying environmental protections while simultaneously insisting on precision in determining the direct impact of individual holdings on water quality.

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