Could enforcement action against river polluters become more likely?

The Environment Agency (EA) successfully defended a judicial review claim brought by campaign group River Action (RA) after a judge rejected the group’s claims that the government had not done enough to prevent farmers from applying excessive fertiliser to farmland, leading to pollution of the River Wye.

Despite rejecting the claim, the court made an important decision on the interpretation of the regulations, which may impact traditional fertiliser practices going forward – leaving landowners wondering, “Wye”?

Interpretation of the regulations

Central to the claim was the interpretation of Regulation 4 of The Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018 (2018 Regulations).

Regulation 4 provides that applications of fertiliser (Applications) must be planned so that the Application doesn’t exceed the needs of the soil and crop on the land.

Historically, the EA had interpreted Regulation 4 narrowly, so that Applications should not exceed the immediate needs of the soil at the time of the Application.

However, statutory guidance issued by DEFRA (Guidance) took a more holistic view, allowing farmers to plan Applications based on the future needs of the land as part of an annual crop cycle.

The EA would typically not prosecute polluters under Regulation 4 provided that the landowner had followed the Guidance.

RA argued that by failing to take enforcement action in these circumstances, the EA had acted unlawfully.

Did the EA act lawfully?

The court decided that the EA had acted lawfully by having regard to the Guidance.

However, the court also determined that the correct interpretation of Regulation 4 was the narrow one. To comply with the 2018 Regulations, farmers should plan Applications based on the needs of the soil at the time of the Application.

In light of this decision, the EA may choose to enforce Regulation 4 more strictly in the future (despite DEFRA’s position).

It remains to be seen how detrimental the court’s decision will be on traditional fertiliser application practices.

However, it’s clear that land managers must be careful when following the Guidance in the future – as compliance with the Guidance is unlikely to be sufficient to avoid a breach of the 2018 Regulations.

For advice and support contact Muckle LLP’s David Towns on 01768 347 084 or email [email protected]