Jr Hutchinson & Son v The Secretary of State for Environment, Food and Rural Affairs

Regulation 4(2) of the Nitrate Pollution Prevention Regulations 2015 (“the Regulations”) requires the Secretary of State to monitor the nitrate concentration in freshwaters over a prescribed period. The nitrate must be measured in order to identify water that is affected by pollution (or could be if the controls provided by the Regulations are not applied), and then to identify land which drains into those waters and that contributes to its pollution. If necessary, such land may then be designated as a “nitrate vulnerable zone” (“NVZ”).

On 28 March 2025 the Secretary of State sent written notice to the Appellant under regulation 5(3)(b) of the Regulations that one or more of its relevant holdings falls wholly or partly within an area that the Secretary of State has identified as an NVZ.

The Regulations define “a relevant holding” as land and any associated buildings used for growing crops in soil, or rearing livestock for agricultural purposes, that fall wholly or partly in an NVZ.

The Appellant has appealed against the notice under regulation 6(2)(a) of the Regulations on the grounds that the relevant holding does not drain into water which the Secretary of State has identified as polluted. This is known as a “Type A” appeal.

The Environment Agency has responded to the appeal on behalf of the Secretary of State. It confirms that the appeal is not opposed because all the land identified by the Appellant (field numbers 4604, 6344 and 7021) does not drain to a polluted water. The Environment Agency acknowledges that the information provided by the Appellant, and that from the Internal Drainage board describing a complex drainage system with the potential for bidirectional flow in the local area, “refines the understanding applied to identify the land draining into the polluted waters.”

The Environment Agency considers that the designations made by the Secretary of State on 31 December 2024 should be amended to remove the land identified by the Appellant in this appeal from “NVZ ID number: S248”. Given this concession, the appeal is allowed.

Pursuant to regulation 6(3) of the Regulations, where the Tribunal upholds an appeal on a Type A appeal the Secretary of State must treat the relevant holding in respect of which the appeal is upheld as not draining into the water concerned.