River Action considers appeal in Farming Rules for Water case

Environmental campaign group River Action is considering an appeal against a High Court ruling which rejected its claim the Environment Agency has been acting unlawfully in the way it enforces the Farming Rules for Water in the River Wye catchment.

The claim for a judicial review was brought by River Action which argued that, by “slavishly” following Defra guidance – particularly in relation to the amount of manure that can be applied to farmland –  the Environment Agency was failing to protect the river from phosphorus pollution and so breaking environmental law.

See also: Environment Agency defends its record in River Wye pollution case

But, in a 58-page ruling, Mr Justice Dove concluded that “on the basis of the materials before the court, the grounds of the claimant’s application for judicial review do not succeed”.

Interpretation 

The crux of the case revolved around the interpretation of Regulation 4.1 of the Farming Rules for Water, concerning the amount of manure and fertiliser that can be applied at any one point in time.

River Action believes manure applications should be limited to the amount needed to meet a crop’s immediate needs only.

But Defra’s guidelines say that applications should not exceed the needs of the soil or the crop “over a full crop cycle”.

This means farmers have still been able to spread manure in the autumn, so meeting the crop’s future needs as well as its immediate needs.

This interpretation has been backed by the NFU, which argues that anything else would be “unworkable and impractical”.

Farmers would have to put up more slurry storage if autumn spreading was limited, farmyard manure would sit in heaps on fields, while spreading on soft ground in the spring could increase the risk of pollution, it argued.

Obliged

Perversely, the Environment Agency’s preference is for manure applications to be limited to the crop’s immediate needs – in line with River Action’s thinking. But it has been obliged to follow Defra’s guidance when policing the regulation.

River Action argued that this was insufficient as well as unlawful. In evidence to the court, it cited cases of farmers who have been perfectly able to adapt their systems and spread according to their crops’ immediate need only.

Indeed, Justice Dove seemed to support that view in his judgment, saying this interpretation would offer better pollution control.

However, in terms of whether the Environment Agency had acted unlawfully, he decided it had not.

In particular, he was pleased that the agency had already tightened advice to its inspectors, encouraging them to work closely with farmers if a breech of the regulation was found, and to initiate “informal enforcement action” combined with a suitable “action plan”.

Response

The Environment Agency welcomed the ruling confirming that its work has been “grounded in the correct interpretation of the 2018 regulations”.

River Action also seemed pleased, saying that, despite the judge dismissing its claim for a judicial review, its challenge had already led to improvements.

“Thanks to River Action bringing its claim, the Environment Agency has changed its approach to enforcing the Farming Rules for Water,” said chairman and founder Charles Watson.

He also welcomed the fact that the judge had supported River Action’s  interpretation of the law, “with the NFU’s intervention being squarely dismissed”.

The NFU, however, said it was “disappointed that the judge disagreed with the interpretation of the legislation put forward by the NFU and Defra” (that manure application could meet the whole crop’s future nutrient need as well as its immediate need).

In his ruling, Justice Dove described the difference in interpretation between the Environment Agency and Defra as “unfortunate”.

“No doubt the clarification of the correct interpretation of the 2018 regulations contained within this judgment will provide further assistance in future,” he said, adding “it is now for the parties to propose the terms of an order to give effect to this judgment”.