Thomas William Johnston v The Secretary of State for Environment, Food and Rural Affairs

Background

1. This appeal concerns land at High Burnthwaite Farm near Carlisle.

2. With the consent of the parties, the appeal has been determined on the papers. The Tribunal is satisfied that it can properly determine the issues without a hearing in accordance with Rule 32 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.

3. 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”).

4. 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 occupier of a relevant holding must comply with rules concerning the use of nitrogen fertilisers and the storage of organic manure. Before the Secretary of State revises or adds to the designation of NVZs, regulation 5 requires him to publicise his proposals and send written notice to anyone appearing to be the owner or occupier of a relevant holding. Regulation 6 then affords such an owner or occupier a right of appeal to the Tribunal. So far as still applicable, the only permitted grounds of appeal 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, [or] (b) drains into water which the Secretary of State should not identify, or should not continue to identify, as polluted. The Secretary of State refers to these as Type A and Type B appeals, respectively. The decision

5. A written notice dated 28 March 2025 (“the Notice”) was served on the Appellant, as the owner/occupier of land identified as falling within NVZ S229. The ‘S’ prefix stands for surface water. The appeal

6. On 22 April 2025, the Appellant appealed against the Notice on the basis that the water should not be identified as polluted or at risk of pollution i.e., a Type B appeal.

7. The ground of appeal is that “water quality results show that the surface watercourse should no longer be designated”. The outcome sought is for all land to be removed from the designation.

8. The Environment Agency (“EA”) has filed a response to the appeal as the technical advisor to, and on behalf of, the Secretary of State. The appeal is contested because the information provided by the Appellant is not considered to constitute significant new information or evidence to remove the land from the designation. Main issue

9. The main issue is whether the Secretary of State was wrong to continue to identify the water into which the land drains as polluted. The Appellant’s case

10. The Appellant has engaged consultants to prepare its case, as summarised below.

11. The Appellant argues t hat water quality data for Woodside Beck shows a consistent trend of improvement since 2013, and data has only once breached the 11.3 mg/l threshold since 2004.

12. It is submitted that reasons for the improvement can be attributed to: a. cessation of a private sewage effluent discharge just upstream of the Woodside Beck monitoring point, at some time after 2012. b. reduction in fertilizer application across the catchment and UK wide due to significant increases in fertilizer prices and environmental awareness driving a change in farming practices.

13. The Appellant says that the land use review undertaken by the EA is considered unreliable by their own team who undertook the analysis. In addition, analysis undertaken on behalf of the Appellant using publicly available data contradicts the findings of the EA, indicating a reduction in arable land with associated likely reduction in fertilizer applications.

14. It is concluded that the requirements set out in the 2016 Methodology for de-designation are met, as (using the numerals in the Methodology): 1) Woodside Beck is no longer polluted. 2) Agricultural applications of fertilizer have reduced due to changes in farming practices. 3A) Reduced nitrate concentrations have been demonstrated over more than two continuous NVZ assessment periods and is highly likely to continue to be compliant with the water quality threshold for nitrates. 3B) The reason for this improvement is known.

15. The Appellant submits that the land no longer drains to surface water that can be described as polluted. On this basis it is considered that the test for de-designation has been met and the Woodside Beck NVZ should be de-designated. The Respondent’s response

16. The Respondent maintains that the appeal does not constitute significant new information or evidence to remove the appealed land from the NVZ designation.

17. The EA says it is confident that previous reviews have identified as NVZs, those waters that are polluted or at risk of pollution from agricultural nitrate and land that drains into those waters that contributes to pollution. The latest review to designate NVZs for 2025-2028 used the most recently available water quality monitoring data and land use data, to assess whether any significant changes have occurred to affect the designations. No evidence was found to suggest that the current status of NVZ S229 should be changed.

18. In its final response the EA says that t he Appellant has 3 fields within the southwest boundary of the Woodside Beck NVZ (NVZ S229). This NVZ covers a small area and was previously part of a much wider area that included the River Petteril. The River Petteril catchment was removed from the NVZ (leaving the Woodside Beck catchment) due to water quality failure at the Woodside Beck monitoring point.

19. There has been no monitoring of water quality in the Woodside Beck catchment since 2018 to indicate whether there has been any improvement or deterioration of water quality. A watercourse runs along the eastern edge of the fields under appeal, which subsequently drains into the NVZ, i.e. the Woodside Beck catchment, as shown on the Appellant’s map. This would indicate hydrological continuity with the catchment.

20. The EA “ acknowledge that there is a lack of monitoring in the area, but maintains that this does not justify the removal of the land from the NVZ as it cannot be determined that the water quality has improved or remains polluted or is at risk of further pollution .” Findings of fact

21. The parties agree that: (i) no water quality monitoring has been undertaken in the catchment since 2018, hence an assessment cannot be made based on water quality within the assessment period. (ii) The Appellant’s three fields are located within the currently designated catchment. (iii) There are currently no water company sewage treatment works discharging within the catchment.

22. The EA confirms there are no revised datasheets for this round of NVZ designations .

23. This surface water NVZ has been designated since 2002. It covers the Woodside Beck catchment, being an area in the region of 6.3 square kilometres.

24. The methodology applied in the original designation is not disputed by the Appellant.

25. The Respondent confirms that the land to which the disputed notice applies is associated with the address to which the notice has been sent. Consideration

26. In December 2016, Defra published its “Method for designating Nitrate Vulnerable Zones for surface freshwaters” (“the Methodology”) on the implementation of the 2015 Regulations. There is no requirement for the Respondent to apply the Methodology upon every review.

27. However, pursuant to Regulation 4(5) the Respondent must, no later than every 4-year period: (a) Identify water that is affected by pollution, or could be if the controls in the Regulations are not applied in the area concerned, (b) Identify land which drains into those waters and that contributes to the pollution in those waters, (c) Take into account changes and factors unforeseen at the time of the previous designation, and (d) If necessary, revise or add to the designation of NVZs.

28. References to ‘pollution’ means nitrate levels above 50 milligrams per litre.

29. It is the EA that must make recommendations to the Secretary of State by reference to the matters in Regulation 4(5)(a) to (c). Under Regulation 5(2) the Secretary of State must then have regard to those recommendations.

30. Chapter 7 of the Methodology addresses de-designation. It recognises that in certain circumstances, it is appropriate to remove NVZ designations. Notably, where water quality has improved sufficiently and agricultural land use, in combination with other Total Inorganic Nitrogen (“TIN”) sources, no longer poses a significant risk of pollution.

31. The Methodology sets out broad criteria for identifying areas where de-designation should be considered. We start by applying these criteria as a helpful steer, noting that they do not comprise a statutory framework or provide a rigid framework. The criteria are numbered 1, 2, 3A, 3B and 4. Criterion 4 concerns Type A appeals where land was previously identified as draining to a polluted water. It does not apply to this Type B appeal and is disregarded accordingly. Criterion 1 – monitoring data demonstrate that the water bodies are no longer polluted

32. To meet this criterion there must be a low risk of exceeding the NVZ threshold for two consecutive reviews. To identify the risk, the Methodology uses an evidence matrix for surface water NVZ designations as a guide to deciding whether or not surface waters are polluted. In all cases, there is a presumption in favour of designation, but local knowledge and detailed data quality checks provide an additional level of scrutiny and inform the final decision. According to the Methodology, two blue coloured tiles in the evidence matrix are needed in consecutive reviews to fulfil the criterion.

33. For 2025 there has been no water quality monitoring undertaken and no land use modelling. In the absence of a review, it is impossible from this NVZ round to have two consecutive low risk reviews for NVZ S229.

34. In 2021, there was no land use modelling evidence. Water monitoring was undertaken up until midway through 2018. With a score of 3, the water was assessed as not polluted. However, the Methodology explains that it is not believed that a score of 3 should, on its own, be a potential trigger for de-designation. This is because there cannot be confidence that a small change in the catchment will not result in a reversion to polluted water status. Therefore, the water assessment was a low confidence pass that the 95 th percentile concentration is below 11.3mg/l. It resulted in a green coloured tile in the evidence matrix for 2021.

35. Thus, irrespective of the lack of data for the 2024 review, a blue tile was not achieved in the last review in 2021 meaning that criterion 1 is not met. That is not necessarily determinative. As indicated in the Methodology (at page 112 of the bundle), it is appropriate to look at the evidence supporting de-designation as a whole.

36. Looking back further to the previous review, there is the EA’s 2017 Data Sheet for Surface Water in S229 (published June 2016). This presents monitoring and modelling data for a larger NVZ the majority of which was de-designated following a successful appeal. There is only one monitoring point in the new NVZ, but the 2017 Data Sheet does capture data for that one location. The water monitoring result for that round was below the pollution threshold but with low confidence that the 95 th percentile TIN concentration was below the threshold. Thus, the monitoring data also recorded a score of 3 as a low confidence pass. Criterion 2 – agricultural land use is low risk as a source of TIN

37. This criterion is designed to increase confidence that removing the NVZ Action Programme will not lead to water quality deteriorating.

38. The Appellant has produced land use data relevant to S229 obtained from the EA on 1 July 2025. The data identifies a rise in tilled land of 32.30% in the Woodside Beck catchment between 2016 and 2020 and no allocation of grassland. Beneath the tabled entries it is recorded that: “ There were some inconsistencies found in the Chrome dataset between the years 2016 and 2020. Urban areas seemed to decrease by a large percentage with a large increase in tilled land. The reason for this is uncertain, which means there is low confidence in the output of this exercise .” Given the EA’s own low confidence in the review undertaken on its behalf, we find this land use data to be unreliable.

39. Indeed, the results are contradicted by the land use map for 2017 provided by the UK Centre for Ecology and Hydrology, which shows that most land within the catchment is grassland/pasture. The EA did not provide comment in reply. The Tribunal notes that UKCEH is an academic institution and reputable source of data. Its findings are the most reliable source of data on land use available in this appeal.

40. Notably, the land use assessment undertaken to inform the NVZ review in 2017, encompassed a much larger catchment than is now within NVZ S229. It is not reflective of the smaller NVZ now under consideration. Furthermore, the size of the NVZ is smaller than the 20 square km cut-off for modelling to be representative.

41. This leads the Tribunal to conclude that there is no land use data after 2017 that would constitute reliable evidence that the agricultural land use is anything other than low risk as a source of TIN. Criterion 3A – the improvement in water quality is sustained over at least two NVZ reviews

42. This criterion is part of showing that the water is no longer polluted and that deterioration is unlikely. It is recognised that monitoring data, in particular, can be influenced by short-term changes in water quality. This requires an examination of the trends.

43. As already mentioned, there has been no water quality assessment undertaken for the 2025 review. Nevertheless, there is a dataset spanning a 30-year period. The data identify very high concentrations of nitrates in the 1990s peaking around 1996 before falling steeply by the year 2000. There were three higher values in 2004. After 2000 the bulk of measurements were below the threshold of 11.3 mg/l. Since 2004, only a single sample in late 2014 exceeded the threshold.

44. There is no evidence of any recent upward trend in TIN concentration. In fact, the available evidence supports the opposite. The sustained trend from the late 1990s until 2018 was one of declining nitrate pollution levels. Criterion 3B – the likely causes(s) of the water quality improvement can be determined

45. The Methodology explains that establishing the cause of observed improvements in water quality is essential to demonstrate that nitrogen pollution will not return if an effective action programme is removed. Appropriate evidence is needed on a case-by-case basis.

46. Since the high values in 2004, there has been the cessation of a private sewage effluent discharge just upstream of the Woodside Beck monitoring point at some time after 2012. Nitrogenous wastes from sewage discharges are a well-recognised cause of increased TIN levels. The reduction of sewage input into the watercourse provides a clear explanation for improved water quality that can be expected to continue.

47. In addition, there have been changes in farming practices nationally. A significant increase in fertiliser costs has prompted more judicious usage in farming generally. It may also be anticipated that both NVZ controls and the nationally applicable Farming Rules for Water will have contributed to the overall reduction in pollutants.

48. Consequently, the likely cause of the water quality improvement can be ascertained. Conclusions

49. We bear well in mind that the potential removal of an existing NVZ designation needs to be considered from a clear understanding of the Directive requirements and the risks of removing the control measures. Furthermore, if land is removed and water quality subsequently deteriorates then the Respondent will be required to designate the land again. This could undermine the NVZ process and have significant cost implications for farmers who remove any infrastructure associated with the NVZ Action Programme only to be required to reinstate it.

50. In considering whether the Respondent was wrong to identify the water into which the land drains as polluted, we start by ascribing special weight to the EA’s judgement as the body given decision-making power by the statutory regime, as well as having the relevant institutional and technical expertise.

51. However, the EA’s judgment in this instance was not informed by any recent monitoring as none was undertaken in this review round for NVZ S229. This is somewhat surprising given the Respondent’s duty within Regulation 4(5) to identify water affected by pollution. It prompts the question of how that was effectively done without any further monitoring whatsoever and seemingly no up-to-date analysis. Instead, the Respondent’s case has relied wholly upon the absence of any new evidence produced by the Appellant on water quality.

52. We do not accept that the absence of data for 2025 means that de-designation cannot occur. The Respondent cannot rely upon the EA’s failure to monitor the water to argue against de-designation. Despite no new evidence in terms of water quality monitoring to show that the NVZ catchment is no longer at risk of pollution, analysis of the available evidential data still allows sufficiently sound conclusions to be drawn.

53. The evidence matrix is a guide only as made clear in the Methodology. Discretion has to be exercised to respond to the facts and circumstances of each case.

54. The downward trend in TIN concentration is sufficiently strong to warrant increased confidence that the improvement has been sustained. We come to this view for a combination of reasons. There has been consistent decline in nitrate levels from the late 1990’s with only one sample since 2004 exceeding the threshold (in late 2014).

55. This decline is consistent with changes in land management practices and the reduction in both fertiliser usage along with reduced sewage discharge within the catchment. These are clearly identifiable reasons for the improved water quality. In combination, the land management changes are sufficient along with the reduction in sewage influxion to have confidence that the water quality improvements have been sustained due to these factors, and will continue to do so regardless of NVZ designation.

56. On the balance of probabilities, and taking the evidence as a whole, we find that NVZ S229 no longer poses a significant risk of pollution. In consequence, it should not continue to be identified as polluted.

57. It follows that the appeal is allowed. Signed: Judge Saward Date: 22 January 2026