What happened 鈥� the basics
River Action brought a Judicial Review claim in March 2023, challenging the Environment Agency鈥檚 policy in relation to the enforcement of the Farming Rules for Water.
River Action鈥檚 claim was dismissed in its entirety, with the court finding the EA鈥檚 approach to enforcement of the Farming Rules for Water to be lawful.
皇家华人intervened in the proceedings on a narrow point of interpretation relating to Rule 1 of the Farming Rules for Water; while this was not one of the main points in the claim, it was necessary for the court to consider this in order to ensure that the EA鈥檚 enforcement approach was assessed against the correct understanding of the underlying legislation.
皇家华人and Secretary of State took the view that the Farming Rules for Water allowed for nutrient applications to be planned based on the needs of the soil and crop beyond immediate needs, i.e. over a longer period of time, such as an annual crop cycle.
This was at odds to the position taken by River Action and the EA who asserted that nutrient applications should be planned so as not to exceed the needs of the soil and crop at the time of the application.
The judge concluded that the interpretation favoured by the EA and River Action was correct, and that nutrient applications have to be planned on the basis of soil and crop need at the time of application.
The statutory guidance is due to be reviewed in 2025, and it is not yet clear how Defra will approach that review. 皇家华人will, of course, seek opportunities to engage with Defra regarding this at an appropriate time.
We understand that members will want to understand what is meant by 鈥榮oil and crop need at the time of application鈥� in order to plan nutrient applications on their holdings; however this is fact specific and needs to be considered on a case-by-case basis.
As such, members will need to take their own independent professional advice from a suitably qualified agronomist to ensure that they have an appropriate nutrient management plan in place.
This is because the crop and soil need for each field will likely depend upon a variety of factors, including the topography of the land, soil type, existing soil nutrient levels and crop type. There are options in SFI which farmers may be able to take up to assist with nutrient management planning.
NFU reaction
Responding to the news, NFU Vice President Rachel Hallos said the NFU was 鈥渄isappointed that the judge disagreed with the interpretation of the legislation put forward by the NFU and Defra鈥�.
She added: 鈥淔armers and growers care deeply about water quality in rivers, including in the Wye catchment, and they will continue to work hard to prevent valuable nutrients and soil 鈥� vital for farming systems and food production 鈥� from contributing to water pollution.
鈥溁始一藈ill consider the judgment in detail and will continue its work with government, local authorities and regulatory bodies such as the Environment Agency to continue to drive further improvements on water quality, so we can maintain and protect the health of the nation鈥檚 rivers.鈥�
This webpage provides a general overview of the outcome of the recent judicial review claim regarding the interpretation and enforcement of the Farming Rules for Water.
Individual members may wish to take independent professional advice from a suitably qualified agronomist to ensure that there is a suitable nutrient management plan in place for their holding.
What was the case about?
The case was focused heavily on Rule 1 of the Farming Rules for Water, the requirements of which are set out below.
A land manager must ensure that, for each application of organic manure or manufactured fertiliser to agricultural land, the application:
- is planned so that it does not
- exceed the needs of the soil and crop on that land, or
- give rise to a significant risk of agricultural diffuse pollution, and
- takes into account the weather conditions and forecasts for that land at the time of the application.
Main arguments
River Action essentially argued the EA was not doing enough to enforce the Farming Rules for Water. In particular, River Action argued that the EA was placing too much weight on the issued by the Defra Secretary of State, which, it said, incorrectly interpreted the Farming Rules for Water.
River Action also argued that the alleged lack of enforcement of the Farming Rules for Water meant that the EA was not doing enough to satisfy its obligations under the Habitats Directive, in particular in relation to the River Wye SAC (Special Area of Conservation). River Action highlighted the issues caused by excess levels of nutrients in the River Wye, with agriculture, it claimed, being one of the most significant contributors to those levels due to the high number of intensive poultry and livestock farms in the area; although the fact that there are other contributors was acknowledged.
皇家华人and the Secretary of State both made submissions in the case regarding the interpretation of Rule 1 to ensure that the Court was aware the interpretation put forward by River Action and the EA was not universally accepted.
What did the court decide?
The judgment in the case was handed down on 24 May 2024, with River Action鈥檚 claim being dismissed in its entirety. The judge found no fault with the EA鈥檚 approach to the enforcement of the Farming Rules for Water and concluded that the EA was doing enough to satisfy its obligations under the Habitats Directive. The judge expressly acknowledged that this is a complex issue, and that coordinated action by a number of authorities under several pieces of legislation would be required to address the issues.
However, the judge concluded that the interpretation of Rule 1 favoured by the EA and River Action was correct, and that Rule 1 requires that nutrient applications are planned so that they do not exceed the needs of the soil and the crop on the land at the time of application.
The judge also concluded that it was lawful, and a matter of good practice, for the EA to have an enforcement policy, and noted that advice and guidance was usually sufficient to bring farmers into compliance with the rules. Therefore the judge did not find any fault with the EA鈥檚 approach, including the use of advice and guidance as the first response to many issues.
Potential impact of the judgment
At the time of writing, we do not know for certain how the EA will respond to this ruling. However, there is nothing in the judgment which requires the EA to change its enforcement practices.
There is also nothing in the following the decision which indicates that the EA is currently intending to make any changes to its approach in the short-term. 皇家华人will seek opportunities to liaise with Defra and the EA regarding the longer-term position.
However, farmers will have to be mindful of the requirements of Rule 1, and individuals may wish to consider taking independent advice (such as from an agronomist) regarding their situation, as there remains a risk of enforcement action if farmers are not compliant with the relevant regulatory requirements.
Enforcement action could range from advice and guidance, with the EA looking to agree a plan to move towards compliance with the legislation, through to prosecution in more serious cases or where advice and guidance does not result in the necessary changes.
The EA鈥檚 advice and guidance-led approach often involves the EA working with farmers to bring them into compliance with the regulatory requirements. With this in mind, farmers may also wish to start to consider how they can adapt their businesses to ensure that they are fully compliant with the requirements of Rule 1.
Farmers may also wish to consider whether there are any grants, or other forms of support, which could help them to future-proof their business. For example, farmers may want to consider whether they are eligible for initiatives such as the Slurry Infrastructure Grant or the Farming Equipment and Technology Fund when the next application rounds open as this could help those who need to upgrade slurry stores or farm equipment.
Statutory guidance
River Action鈥檚 claim did not directly challenge the lawfulness of the Statutory Guidance and therefore the court did not make any findings regarding the Statutory Guidance. As such, it appears that there is nothing in this judgment which requires that the Statutory Guidance is removed or reviewed immediately.
This means that the EA may continue to have regard to (i.e. consider) the Statutory Guidance, although it is not, and has never been, obliged to follow that approach if there are good reasons for it not to do so.
However, it remains the case that the Statutory Guidance is due to be reviewed no later than September 2025. At this stage, Defra has not given any indication of its intentions regarding the review of the Statutory Guidance, and it is unlikely that any such discussions will now be able to take place until after the general election.
皇家华人will seek to engage with Defra regarding this matter when appropriate.
What does the judgment mean for farmers?
皇家华人understands that many farmers are struggling to understand what this judgment means in practice for their business. For example, farmers are trying to understand whether autumn spreading is still possible, or whether they can apply, for example, one or two months鈥� worth of nutrients in a single application.
It is not possible for the NFU to give a definitive view on this, and it may be that there isn鈥檛 a one-size-fits-all approach that can be adopted, as the situation on each farm may be slightly different.
Individuals who are concerned about their situation should take independent professional advice regarding their nutrient applications, for example, from a suitably qualified agronomist. Having a properly drawn up nutrient management plan, with input from a professional adviser could help to demonstrate compliance with the requirements of Rule 1, as it will show that there is an appropriate plan in place.
Will there be an appeal?
At the time of writing, it was not clear whether there will be an appeal against the court鈥檚 decision.
Proportionate approach to enforcement
While the court鈥檚 ruling on the interpretation of Rule 1 is concerning, it is very reassuring that the court upheld the EA鈥檚 proportionate approach to enforcement of the regulatory requirements.
The court recognised that, in most instances, advice and guidance is sufficient to bring farmers into compliance with the law, and that the EA鈥檚 current approach is effective at bringing about behavioural change.
It is also reassuring that the court recognised that water quality is a complex issue, with multiple contributors. The court recognised that addressing these issues requires more than the enforcement of one single piece of legislation, and that several regulators have a role to play.
However, it has always been clear that the Statutory Guidance will be reviewed in 2025. As yet, it is unclear exactly what this will mean for the industry, or whether it will result in any change to the EA鈥檚 enforcement approach.
Individual farmers will have to consider their own position carefully, being mindful of the risks associated with non-compliance with the requirements of Rule 1.
