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Agriculture and Rural Land specialist Nitrate Vulnerable Zones
A determined landowner has recently succeeded in challenging the expansion of a Nitrate Vulnerable Zone designation. The rare victory revealed significant flaws in the Environment Agency’s approach to assessing the impact of agriculture on nutrient levels in the River Adur in Sussex. This is a notable achievement, considering the Tribunal’s usual deference to the Agency’s complex and often opaque assessment process in designating Nitrate Vulnerable Zones.
What is a Nitrate Vulnerable Zone?
Under the Nitrate Pollution Prevention Regulations 2015 (Regulations), a Nitrate Vulnerable Zone (NVZ) is an area designated as at risk of water pollution caused by nitrates from agricultural sources. These zones are identified where nitrate levels in water exceed, or could exceed, 50 mg/l, or where eutrophication (nutrient enrichment) impacts water quality. Farmers within NVZs must adhere to strict rules to minimise nitrate leaching, including restrictions on when and how much nitrogen fertiliser or slurry they apply. The objective is to protect both surface and groundwater from pollution.
The landowner must maintain detailed records, including spreading risk maps, nitrogen load calculations, and assessments of leaching quantities based on rainfall, soil type, and spreading rates.
NVZs form part of the UK’s compliance with the EU Nitrates Directive, even post-Brexit.
Non-compliance with the Regulations is a criminal offence, potentially leading to an unlimited fine. The Environment Agency (EA) can also impose civil sanctions, including additional penalties and compliance notices on the landowner or occupier. Until 2024, breaches also risked deductions from the occupier’s Basic Payment Scheme under the now-abolished cross-compliance rules.
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The Nash case
In Nash v Secretary of State for the Environment, Food & Rural Affairs [2024], Mr Nash (trading as R G Nash & Sons) appealed a decision that designated his land at Brighthams Farm in West Sussex as part of a Nitrate Vulnerable Zone (NVZ). He argued that the methodology used could not reliably attribute nutrient levels in the River Adur to agricultural activity because it failed to properly account for the influence of a wastewater treatment works (WWTW) in the catchment area. Specifically, the WWTW’s nitrogen contribution was underestimated because it incorrectly assumed the facility used a nitrogen stripping process, when in fact it did not.
Additionally, the methodology did not include land-use modelling, which would have demonstrated that agricultural sources contributed significantly less – three to four times lower – than the observed concentrations. This would have suggested that the WWTW was the primary source of the excess nitrogen.
In its conclusion, the Tribunal acknowledged that expanding an NVZ could be justified if more conclusive data becomes available. However, in this case, the Tribunal found that the Environment Agency had incorrectly classified the water as polluted by agriculture.
This decision offers encouragement to landowners and tenants facing new NVZ designations to carefully evaluate whether the designation is based on evidence. If it is not, appealing the designation might be the best option.
Nitrogen Vulnerable Zone: Final thoughts
For those already within NVZs, the Nash case highlights the importance of complying with the relevant regulations. A key step is confirming whether your land falls within an NVZ; for this, use DEFRA’s MAGIC mapping tool. Landowners should also exercise caution when drafting leases and licences to assign responsibilities for regulatory compliance clearly.