First-tier Tribunal (General Regulatory Chamber)

 

 

Neutral Citation Number: [2023] UKFTT 1 (GRC)

 Case Reference: NVZ/2022/0017

First-tier Tribunal

General Regulatory Chamber

Environment

 

Determined on the Papers

On 18 October 2022 

 

 

Decision given on: 03 January 2023

 

Before

 

TRIBUNAL JUDGE G WILSON

TRIBUNAL MEMBER PROFESSOR A JOHNSON 

 

 

Between

 

S & A MORLEY

 

Appellant

and

 

SECRETARY OF STATE FOR THE ENVIRONMENT

Respondent

 

Decision: The appeal is Dismissed

 

 

REASONS

 

Background to these Proceedings

 

1.      Every  four  years  the  Secretary  of  State  identifies  those  waters  in  England  which  are  either  polluted  by  the  discharge  of  nitrogen  compounds  from  sources which include agricultural sources  or are at risk of being so polluted  unless  action  is  taken.    He  then  designates  as  Nitrate  Vulnerable  Zones,  (“NVZs”) all areas of land which drain into such waters and which contribute  to  the  pollution.    This  has  consequences  for  agricultural  holdings  within  a  NVZ;  they  must  observe  the  restrictions  prescribed  in  the  Nitrate  Pollution  Prevention Regulations 2015 as amended (“the 2015 Regulations”).   

 

2.      The Environment Agency (EA) has made recommendations for NVZs to the  Secretary of State and he has published those which he is inclined to accept.  This includes NVZ ID G51.

 

3.      The Appellant’s assert that part of the Appellants land at Petteril Bank Southwaite Carlisle CA4 0JJ, as shown delineated in blue and numbered 3313 and 5606 on the plan attached to the Appellant’s application for appeal (the holding) should not form part of NVZ ID G51; Penrith.

 

4.       The EA has conduct of the Respondent’s case in the tribunal.

 

Determination on the Papers and Documents

 

5.      On 24 May 2022 the parties were informed that this appeal would be determined without a hearing.   Neither party has raised an objection to this course of action.  Indeed, the Respondent has indicated that his preferred course of action is for this appeal to be determined on the papers.  Accordingly, this appeal is decided upon the papers and without a hearing. 

 

6.      The Tribunal has before it a bundle comprising 84 pages.   The bundle was sent to the parties on 4 May 2022 together with a covering email which stated “I will delay placing the papers before a Tribunal for 14 days in case either side wishes to add anything, e.g. final submissions.”  On 6 May 2022, the Appellant’s representative emailed the Tribunal to indicate that a final submission would be made before the deadline. However, no further submission has been received nor was an extension requested.  Indeed, on 8 May 2022, the Appellant’s representative emailed the Respondent and Tribunal and confirmed “No further evidence is being supplied on behalf of our client”.  Accordingly, the Tribunal has treated the 84 page bundle as to the totality of the evidence and submissions upon which the parties wish to rely.  

 

The Law

 

7.      The  source  of  the  Secretary  of  State’s  obligation  to  designate  NVZs  is  the  Agricultural   Nitrates   Directive   (91/676/EEC).   The  Directive   has   been  considered by the European Court of Justice (ECJ) in enforcement proceedings  brought against the UK in Case C-69/99; and also in R  v  Secretary  of  State  for  the  Environment  and  Another,  ex  parte  Standley  and  Others: National Farmers Union, intervener (29 April 1999) Case  C-293/97 reported as R v Secretary of State for the Environment and MAFF  [1999]  Env  LR  801.      This  emphasised  the  flexibility  the  Directive  gives  to  enable member states to achieve the aims of the Directive and noted:- 

 

“Community law cannot provide precise criteria for establishing in each case whether  the  discharge  of  nitrogen  compounds  of  agricultural  origin  makes  a  significant  contribution to the pollution.” 

 

8.      The 2015  Regulations so far as relevant to this appeal provide as follows: 

 

Regulation 2(2)

 

For the purposes of the Regulations, a reference to “polluted water” means “water

which—

 

(a) is freshwater and contains a concentration of nitrates greater than 50 mg/l (or could do so if these Regulations were not to apply there), or

 

(b) is eutrophic (or may in the near future become so if these Regulations were not to apply there)

 

Regulation  4(5)

 

No later than the end of each four-year period provided for under paragraph (2),  the Secretary of State must—

 

(a)     identify water that is affected by pollution, or  could be if the controls in these Regulations are not applied in the area concerned,  using the criteria in Annex I to Council Directive 91/676/EEC”

 

Regulation 4(7))

Provides that following the UK’s departure from the European Union, Annex 1 to Council  Directive 91/676/EEC should be read as follows: 

 

“ANNEX I

CRITERIA FOR IDENTIFYING WATERS REFERRED TO IN ARTICLE 3 (1 )

 

A. Waters referred to in Article 3 ( 1 )7 shall be identified making use, inter alia, of the following criteria:

1 . whether surface freshwaters, in particular those used or intended for the abstraction of drinking water, contain or could contain, if action pursuant to Article 5  regulations 7 to 35 of the Regulations is not taken, a concentration of  nitrates greater than 50 mg/l;

2 . whether groundwaters contain more than 50 mg/l 1 nitrates or could contain more  than 50 mgl/ 1 nitrates if action pursuant to Article 5 is not taken;

3 . whether natural freshwater lakes, other freshwater bodies, estuaries, coastal  waters and marine waters are found to be eutrophic or in the near future may  become eutrophic if action pursuant to Article 5 is not taken .

 

B. In applying these criteria, Member States shall also take account of:

1 . the physical and environmental characteristics of the waters and land;

2. the current understanding of the behaviour of nitrogen compounds in the

environment (water and soil);

3 . the current understanding of the impact of the action taken pursuant to Article 5 .

 

Regulation 6(2)

Provides that the owner or  occupier of an affected holding can appeal to the tribunal against the proposed  designation  but  only  on  very  limited  grounds.  The grounds are that the relevant holding (or any part of it): 

 

(a)         does not drain into water which the Secretary of State proposes to identify, or to continue to identify, as polluted or which has been similarly identified in Wales or Scotland, . . .

 

(b)         drains into water which the Secretary of State should not identify, or should not continue to identify, as polluted.

 

9.      The burden of proof is on the Appellant and the standard of proof is on the balance of probabilities (i.e. more likely than not).

 

 

The Appeal

 

10.  This appeal relates to ground water NVZ ID G51; Penrith. 

 

11.  The Appellant appeals against the Respondent’s notice of decision, pursuant to  Regulation 5(3)(b) of the 2015  Regulations,  informing the Appellant that from 31 December 2020 the holding  falls wholly or partly within an area the Respondent has designated as a Nitrate Vulnerable Zone (NVZ) for 2021 to 2024. 

 

12.  The Appellant appears to use the incorrect appeal form which is headed “Application for permission to appeal to the Upper Tribunal”.  We have nonetheless treated this as the Appellant’s appeal application.  Within this document and the “Cover Sheet for Nitrate Vulnerable Zone appeal ”the Appellant claims that the holding, shown as two fields numbered 3313 and 5606,  does not drain into water which the Respondent has identified as polluted. Accordingly,  the Appeal is made pursuant to Regulation 6(2)(a). 

 

13.  Whilst the Appellant indicated that expert evidence would be produced in support of the Appeal by 30 April 2022, no expert evidence has been produced by the Appellant.  The Appellant has produced no evidence in support of his appeal.  Nor has the Appellant particularised his grounds of appeal in any detail other than the bare assertion that “the holding does not drain into water which the Respondent has identified as polluted”. 

 

The Response

 

14.  On 16 February 2022 the Respondent responded to the Appellant’s notice of appeal pursuant to rule 23 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.  The Respondent opposed the appeal. 

 

15.  The Respondent relied upon the original data report for NVZ ID G51 being the individual data sheet for the NVZ.  The Respondent asserted that the data sheet for the NVZ provides the most accurate assessment that the holding does drain to a polluted water.  The Respondent asserted that the holding has been correctly identified as draining to a  polluted water by hard boundary mapping methodology as  described in the Designation methodology.  In addition, no new substantive evidence has been produced by the Appellant to demonstrate that the holding identified in the appeal did not drain to a polluted water. 

 

Evidence, Findings of Fact and Discussion

 

16.  The methodology used by the Respondent to derive and delineate NVZs for groundwaters in England is set out  in the document titled “ Implementation of the Nitrate  Pollution Prevention  Regulations 2015 in England  Method for designating Nitrate  Vulnerable Zones for groundwaters December 2016”.  Base maps from the Ordnance Survey and the geological mapping from the British Geological Survey (BGS) are utilised. Aquifer locations and designations are also taken from BGS information. Field boundaries for the final mapping of zones use data supplied by the Rural Payments Agency (RPA). The method uses these datasets (for example, geological and hydrological  maps) combined with analysis of farm-derived nitrate loadings (from farm census returns)  and monitored concentrations in groundwater together with a conceptual understanding of the behaviour of  groundwater and  nitrate both in general and in particular locations.  A series of workshops with local Environment Agency (EA) staff provide for more detailed local knowledge to be obtained and area ground specialists consider factors affecting the path of water from the  surface downwards into a groundwater body including, for example, the presence of impermeable layers and lateral flow though subsoil.   Final mapping involves establishing boundaries that in general reflect geological or hydrological divides.  This may include geological boundaries such as changes in rock type, faults and geological contacts;  surface water catchment boundaries, groundwater level contours, high permeability drift outcrops; low permeability drift outcrops or  rivers, acting as groundwater catchment divides.  These boundaries are then applied to existing field boundaries based on map data provided by the Rural Payments Agency.

 

17.  The  evidence  for  the  designation  is  set  out  in  the  relevant  designation  datasheet.   The data sheet sets out that the western and south-eastern boundaries of the NVZ are defined by the bottom and top of the Penrith Sandstone outcrop locally. The eastern boundary is defined by  the Eden River which acts as a local groundwater divide. The northern boundary is  defined using a flow line from sandstone groundwater contours (2000). The southern  boundary is defined by another flow line from sandstone groundwater contours. 

 

18.   The Appellant raises no express challenge to the data upon which the environment agency conclusions are based (for example the geological and hydrological  mapping); the methodology adopted by the Environment Agency or the application of that methodology. The tribunal notes that the data relied upon by the Environment Agency is from reputable sources  including the Ordnance Survey and  geological mapping  from the British Geological Survey.  The methodology described above is based upon amongst other things geological and hydrological features to establish the path of the water from the surface to groundwater.  In addition, the methodology has been tested against local knowledge at local workshop events such that local knowledge has been factored into the findings.  In absence of any express challenge to the data and methodology adopted by the Respondent or their application, for the reasons set out above, we place weight upon the evidence produced by the Environment Agency.

 

19.  On the basis of the evidence before us we are, on the balance of probabilities, satisfied that the boundaries of the NVZ are appropriately delineated by reference tothe features set out within the data sheet and detailed above.  A comparison of the map of the holding attached to the application [Bundle page 9] and the map of the relevant part of the NVZ shows that the holding falls within the boundaries of the NVZ.   It follows that we find that the Appellant has failed to demonstrate that the holding does not drain into water which the Secretary of State proposes to identify, or to continue to identify, as polluted.  It follows that we find that the Appellant has failed to satisfy the requirements of Regulation 6(2)(a) and the appeal is dismissed.  

 

 

Conclusion

 

20.  The Appellant has failed, on the balance of probabilities, to demonstrate that the requirements of Regulation 6(2)(a) are met.  This being the only basis upon which the Appellant appeals the Respondent’s decision, the Appeal is dismissed.     

 

Signed      

 

TRIBUNAL JUDGE G WILSON                                                 Date: 22 December 2022