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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> PJ v Secretary of State for Environment, Food and Rural Affairs (Environment : other) [2015] UKUT 207 (AAC) (11 May 2015)
URL: http://www.bailii.org/uk/cases/UKUT/AAC/2015/207.html
Cite as: [2015] UKUT 207 (AAC)
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IN THE UPPER TRIBUNAL Case No. MISC/3872/2013
ADMINISTRATIVE APPEALS CHAMBER
Before: Mr Justice Birss and Upper Tribunal Judge Lloyd-Davies
JOINT DECISION
The decision of the tribunal dated 29 July 2013 involved the making of an error of law. That decision is set aside and the case is remitted to a differently constituted tribunal for redetermination.
REASONS FOR DECISION
1. Nitrates are a cause of water pollution. This case is concerned with the measures taken to limit that sort of pollution. Nitrates play a major role in agriculture as fertilisers, both in the form of manure and in the form of man-made fertilisers. However agriculture is not the only source of nitrate pollution in water. There are others, for example discharges from sewage treatment works. Water leaching from quarries and landfill sites may also be a source of relevant nitrates.
2. The appellant, Mr Johnson, farms an agricultural holding of about 350 acres in County Durham. It is known as Quarrington Farm. The farm is located in a water catchment area known as the Croxdale Beck catchment. The name derives from the final downstream watercourse in the area. The catchment has an area of about 47 square kilometres of which about 70% is agricultural land. Quarrington Farm represents about 3% of the catchment area.
3. Croxdale Beck flows into the River Wear. Within the catchment Croxdale Beck has a number of tributaries. The main ones are Kelloe Beck, Tursdale Beck, East Howle Beck, Bowburn Beck and Skip Beck. Quarrington Farm sits in between Bowburn Beck and Tursdale Beck, roughly at the headwaters of these courses. There are two conurbations within the catchment area and the A1M motorway runs across it.
4. Within the catchment there are a number of sewage treatment works (STWs) which discharge into the water courses, as well as other licensed discharges. The STWs are as follows:
(a) Bowburn STW on Bowburn Beck downstream from Quarrington Farm,
(b) Tursdale STW and Kelloe STW, both on Kelloe Beck which drains into Tursdale Beck at a point downstream of Quarrington Farm, and
(c) East Howle STW and Ferryhill North STW both on East Howle Beck which also drains into Tursdale Beck downstream of Quarrington Farm.
5. Also within the area are a number of quarries and landfill sites, as follows:
(a) Old Quarrington Quarry, which is located close to Quarrington Farm
(b) Coxhoe Quarry/Landfill and Joint Stocks Quarry, which are side by side and are located between Tursdale Beck and Coxhoe Beck. Coxhoe Quarry/Landfill is beside Quarrington Farm
(c) Wingate and Old Wingate Quarry and Waste Disposal sites, which are located near the head of the Kelloe Beck.
6. There is a water quality monitoring point at a final downstream site in the Croxdale Beck (point 44300030) as well as a number of other water quality monitoring points in the catchment area.
7. On 28 August 2012 the Secretary of State for Environment, Food and Rural Affairs (“the Secretary of State”) gave Mr Johnson notice that the Secretary of State proposed to designate the Croxdale Beck catchment as a Nitrate Vulnerable Zone (“NVZ”). The proposed NVZ bore the designation NVZ238. That designation arose as part of the four yearly cycle in which the Secretary of State identifies those waters in England which are either polluted by the discharge of nitrogen compounds from agricultural sources or are at risk of being so polluted unless action is taken. The approach used by the Environment Agency to designate NVZs follows a methodology identified and agreed by a Method Review Group (MRG). It is considered by Defra as being compliant with the law.
8. This case is concerned with Mr Johnson’s challenge to that designation. At the heart of his complaint is the idea that his farm (or agriculture generally) is by no means the only contributor to nitrate levels in the Croxdale Beck catchment.
The law
9. The Nitrates Directive is Council Directive 91/676/EEC (concerning the protection of waters against pollution caused by nitrates from agricultural sources). Article 1 explains that the objectives of the directive are to reduce water pollution caused or induced by nitrates from agricultural sources and to prevent further such pollution. There is a scheme for the designation of areas of land which drain into waters which are identified as waters affected by pollution (Art 3). These areas are known as vulnerable zones. Action programmes will be established for the vulnerable zones in order to realise the objectives of reducing and preventing pollution (Art 5). For the purpose of designating and revising the designation of vulnerable zones Member States must monitor nitrate concentrations at representative water sampling stations (Art 6). Annex 1 of the Nitrates Directive sets out the criteria for identifying waters for the purposes of Art 3. Paragraph A. 1. of that annex provides that the level of nitrates in water used or intended for abstraction of drinking water is that laid down in Directive 75/440/EEC, which is 50mg/litre.
10. The Nitrates Directive has been implemented in England by The Nitrate Pollution Prevention Regulations 2008 (SI 2008/2349), as amended. The Regulations set out a scheme for designation of relevant zones as NVZs. (The 2008 Regulations were replaced, with effect from 1st May 2015, by The Nitrate Pollution Prevention Regulations 2015 (SI 2015/668): references in this decision to “the Regulations” are to the 2008 Regulations as amended.)
11. Paragraph 7 of the Regulations provides for designation, as follows:
Designation of nitrate vulnerable zones
7.—(1) The areas marked as nitrate vulnerable zones on the maps marked “Nitrate Vulnerable Zones (England 2008)” and deposited at the offices of the Secretary of State for Environment, Food and Rural Affairs, Nobel House, 17 Smith Square, London SW1P 3JR are designated as nitrate vulnerable zones for the purposes of these Regulations.
(2) These are areas of land that drain into polluted waters and that contribute to the pollution of those waters.
12. Polluted waters are defined in paragraph 5 as:
Meaning of “polluted water”
5. Water is polluted if—
(a) it is freshwater and contains a concentration of nitrates greater than 50 mg/l, or could do so if these Regulations were not to apply there, or
(b) it is eutrophic or may in the near future become eutrophic if these Regulations were not to apply there.
13. A four yearly review of the designations by the Secretary of State is provided for in paragraph 11 of the Regulations.
14. Parts 3 to 8 of the Regulations place limits on the total amount of nitrogen applied to a holding in an NVZ and make other detailed provisions relating to livestock manure and spreading fertiliser. These provisions have an impact on both pastoral and arable farming. Their effect is to limit the number of animals per unit area that a farmer can keep inside an NVZ and to limit the amount of fertiliser which can be applied to grass and to crops. For the farmer, being inside an NVZ has a significant economic impact.
15. In R (Standley) v Secretary of State for the Environment (ECJ, Case C-293/97, 29 April 1999) the European Court had to consider the Nitrates Directive and the problem that the levels of pollution in water could be caused in part by nitrates from agriculture and in part by nitrates from other sources. In dealing with the first question of the two referred, the court rejected the submission that the 50mg/l limit applied only to nitrates from agricultural sources and held that the directive required the identification of “waters affected by pollution” (Art 3) as those which contained a concentration of nitrates in excess of 50mg/l and which the Member State considered that the discharge of nitrogen compounds from agricultural sources made a significant contribution to that overall concentration of nitrates.
16. In reaching this conclusion the ECJ rejected the argument that “significant” was too imprecise a standard (Judgment paragraph 28) and held that the Member State did not have to determine precisely what proportion of the pollution in the waters is attributable to agriculture. To designate a basin as an NVZ when agriculture made a significant contribution but was not solely responsible for the fact that the nitrate level was greater than the 50mg/l limit was appropriate because the limit was determined by public health and because the objective of the directive was to reduce and prevent water pollution caused by nitrates from agriculture (Judgment paragraphs 34-35). When reviewing designation decisions the national courts had to take into account the wide discretion enjoyed by the Member State which was inherent in the complexity of the required assessments (Judgment paragraph 37). Community law could not provide precise criteria for establishing in each case what a significant contribution was.
17. In dealing with the second question, the court held that designating a zone as an NVZ when the agricultural contribution to the pollution was less than 50mg/l did not offend any of the principles of proportionality, the polluter pays principle nor the fundamental rights of property of the farmers concerned.
18. In a later case, EC v Belgium (CJEU Case C-221/03, 22nd September 2005) the court again considered the Nitrates Directive and the problem of agricultural nitrates not being the sole source of nitrate pollution in water courses. The EU Commission had raised a complaint against Belgium for failing to designate a region which drained into the North Sea (the Walloon region) as a vulnerable zone. The Belgian Government did not deny that the waters were polluted and that certain zones of the Walloon Region contributed to that pollution. However the Belgian Government argued that the region should not be designated because the nitrate levels in the water were heavily influenced by households and industry. The court did not accept that and referred back to Standley, as follows:
“84 In that connection, it must be observed that the Court has already held that it would be incompatible with the Directive to restrict the identification of waters affected by pollution to cases where agricultural sources alone give rise to a concentration of nitrates in excess of 50 mg/1 when the Directive expressly provides that, in establishing the action programmes under Article 5, the respective nitrogen contributions originating from agricultural and other sources are to be taken into account (Case C-293/97 Standley and Others [1999] ECR I‑2603, paragraph 31). Consequently, the mere fact that domestic or industrial waste also contributes to the nitrates levels in Walloon waters is not in itself sufficient to exclude application of the Directive.”
19. The Court also rejected the submission of the Belgian Government that the Walloon region only made a small contribution to the pollution, holding:
“86 In that connection, it must be observed that, according to a document supplied by the Belgian Government, Walloon agriculture contributes 19% of the total nitrogen in the Meuse basin and 17% of the total nitrogen in the Escaut basin. Those two rivers cross the Walloon Region and drain into the North Sea. It must be pointed out that, although minor, those contributions are by no means insignificant.
87 It is clear from paragraph 35 of the judgment in Standley and Others that the Directive applies to cases in which the discharge of nitrogen compounds of agricultural origin makes a significant contribution to pollution.
88 Moreover, the eutrophication of the North Sea is caused by numerous actors who, considered individually, indeed make a minor contribution. To follow the reasoning of the Belgian Government would accordingly run counter to one of the express purposes of the Directive, namely protection of the North Sea.
89 Consequently, that argument cannot be upheld.”
20. These two decisions of the CJEU are the only cases cited to us which relate to the designation of NVZs. In summary they show that when a water course is identified as polluted (i.e. has a nitrate level above 50mg/l) the test to be applied by the Secretary of State is whether agricultural sources make a significant contribution to that pollution. Whether the agricultural contribution is or is not significant in a given case will be a multifactorial question of fact and assessment. On the facts of the case in EC v Belgium, contributions of the order of 17%-19% were accepted by the court as significant.
The course of these proceedings
21. The farmer can appeal to the tribunal against a proposed NVZ designation but only on very limited grounds (Paragraph 11C of the Regulations). Appeals are of two types. The first type can be referred to as a “drainage appeal” (ground (a)). The ground is that the relevant holding, or part of it, does not drain into the identified polluted water. The second type of appeal can be referred to as a “polluted water appeal” (ground (b)). The ground is that the Secretary of State was wrong to identify the water into which the land drains as polluted.
22. Mr Johnson exercised his right of appeal to the First‑tier Tribunal (General Regulatory Chamber), to which we refer as “the tribunal”, by a notice of appeal received on 25 September 2012. It is a polluted water appeal. In that notice it was stated that the outcome of the appeal that was sought was:
(a) the removal of Mr Johnson’s holding from NVZ238; alternatively
(b) the removal of the whole NVZ designation.
23. The notice of appeal was accompanied by a brief letter setting out grounds for appeal prepared by water consultants engaged by Mr Johnson. The letter indicated amplified grounds would follow.
24. One of the points taken on appeal to the tribunal was the question of non‑agricultural sources of nitrate effluents which had not been specifically accounted for. The Environment Agency NVZ designation of 25 June 2012 (which underlay the decision notice of 28 August 2012) was based on historic data from six monitoring points within the catchment area, taken together with predictions based on land‑use returns made by farmers. That designation identified two point sources of non‑agricultural nitrate discharge, namely, two of the sewage treatment works. The contribution of other non‑agricultural sources of nitrate was generically estimated.
25. Mr Johnson’s submissions included supporting data supplied by his consultants, Hafren Water. The thrust of the submissions and evidence was directed towards the issue of whether the whole NVZ designation should be removed, rather than the issue of whether Mr Johnson’s holding should be removed from the NVZ.
26. Following the receipt of Mr Johnson’s appeal to the tribunal, the Environment Agency ran models using a highly complex “Monte Carlo” modelling system called SIMCAT taking into account the known, licensed, discharges into the water courses (referred to as point sources) within the catchment. Two such models were run, one (“the Croxdale SIMCAT”) relating to the main stem of the water courses and the other (“the Bowburn SIMCAT”) relating to the Bowburn Beck on which lies the Bowburn STW.
27. The Environment Agency maintained that the designation of the NVZ was correct. The Environment Agency’s case in summary came down to the following:
28. First, although over time the measured levels of nitrate in the water were often below 11.3mg N/l, nevertheless the nitrate level was above 11.3 mg N/l frequently enough to mean that the water was “polluted water” within paragraph 5 of the Regulations. The water either was polluted or was at least at sufficient risk of being polluted if measures were not taken to satisfy the Regulations and the Directive. This applied at the final downstream monitoring point 44300030 and also at other monitoring points in the catchment area. 11.3mg N/l is taken as the equivalent of 50mg/l nitrate (subject to the TIN/TON point addressed below).
29. Second, based on generic land use models (including Defra farm census data and a model called NEAP-N developed by ADAS) one could estimate the average load of nitrate produced by agriculture in this catchment and use that to estimate how much of the nitrate in the water derived from agricultural sources. On this basis the Environment Agency estimated that 45% of the nitrate in the water came from agriculture.
30. Third, (see, for example, paragraph 1.5 of the Environment Agency response dated 21 March 2013) in circumstances where the total loading to the catchment gave rise to concentrations that just exceeded 11.3mg N/l, it was reasonable to treat a contribution from agriculture of at least 17% as a significant contribution. The 17% figure was derived from the EC v Belgium (above). On this basis the catchment was properly designated as a NVZ.
31. Fourth and separately, the SIMCAT modelling supported the designations. Using SIMCAT a hydrologist creates a statistical model of the flows in a catchment area. The model then allows the hydrologist to account for the contribution of difference sources of nitrates. Sources of nitrates can be diffuse sources or point sources. Diffuse sources are also referred to as non-point sources. Agriculture is a diffuse source. Point sources are discharges such as those from STWs. The point sources are identified and plugged into the model. The nitrate contributions arising at the headwaters are estimated. The results of the SIMCAT models prepared on 13th December 2012 (revisions of previous models prepared in November 2012) were that based on mean concentrations, the estimated contributions at the downstream monitoring stations were 62% for non-point sources in the case of each of the Croxdale SIMCAT and the Bowburn SIMCAT. The 95%ile figures were 86% and 102% respectively. We understand that just taking the figures based on means, the 62% contribution from non-point sources did not mean that agriculture accounted for 62% of the nitrate in the water because there were other diffuse sources of nitrate apart from agriculture. One is nitrate produced naturally from the atmosphere. However the Agency contended that agriculture was a major non-point source and so these data supported the designation. Indeed the report on the revised SIMCAT models concluded that the agricultural contribution to the nitrogen pollution at the relevant monitoring points was 55% or greater.
32. In summary, the Environment Agency accepted that non-agricultural sources of nitrates were a significant cause of pollution in the catchment area but maintained that the contribution from agriculture was itself significant and so designation was correct.
33. In response Mr Johnson filed extensive and detailed submissions challenging the entire SIMCAT modelling exercise. In addition Mr Johnson filed the results of water quality sampling which had been undertaken by him (or on his behalf) to measure actual nitrate levels in the water.
34. In summary Mr Johnson argued as follows. First the nitrate level at the final downstream catchment monitoring point for the years 2004-2009 was less than 11.3 mg/l (the 95%ile was 11.27) and so the water was not polluted at all within paragraph 5 of the Regulations. Second the sampling results taken by Mr Johnson showed that the agricultural contribution was not significant. Third one of the Environment Agency monitoring points (near Bowburn STW) should be excluded because it was unduly influenced by that STW. Fourth, the outputs of the SIMCAT model were wrong, the model was not designed to model contributions from agriculture and was an inappropriate tool in any case. Overall therefore the designation was not justified.
35. By the time the matter was ready to be dealt with by the tribunal, the written submissions and evidence filed by both sides extended (excluding correspondence between the parties) to several hundred pages, much of the material being of a detailed and technical nature. Each party elected for a paper hearing by the tribunal. The tribunal consisted of a legally qualified chairman and a professional hydrologist member. By its decision dated 29 July 2013 the tribunal dismissed Mr Johnson’s appeal.
36. Mr Johnson applied for permission to appeal, which was refused by the then President of the General Regulatory Chamber but was subsequently granted by Judge Lloyd‑Davies. The Chamber President of the Administrative Appeals Chamber directed that the appeal be heard by a two judge panel.
37. At the oral hearing of the appeal before the Upper Tribunal each side was represented by Counsel. Mr Johnson was represented by Mr Rudd and the Secretary of State was represented by Miss Blackmore. During the hearing each side sought to submit further material. We allowed the parties to provide the material to us on a provisional basis, with the decision as to whether it would be admitted to be made as part of the overall decision. Following the hearing further written material (to which we return below) was submitted on behalf of each party.
The nature of this appeal
38. This appeal comes before the Upper Tribunal under s11 of the Tribunals, Courts and Enforcement Act 2007. It is an appeal on a point of law only (s11(1)). Under s12 of the 2007 Act the Upper Tribunal may, if it finds an error of law, set aside the decision and if it does then it must either remit the case to the tribunal or remake the decision itself.
39. The respondent submitted that the Upper Tribunal should be cautious when hearing appeals from a specialist tribunal, referring by analogy to the same approach which is applied in the High Court and Court of Appeal (see Napp Pharmaceutical Holdings v Director General of Fair Trading [2002] EWCA Civ 796 per Buxton LJ, R v Parole Board v Watson [1996] 1 WLR 906 and R (Levy) v Environment Agency [2002] EWHC 1663 (Admin)). We accept that submission in as much as the Upper Tribunal will pay due regard to the specialist expertise of the tribunal from which it is hearing an appeal. However we note that these appeals are limited to points of law in any event.
The tribunal’s decision
40. The tribunal’s decision summarised the legislative and factual background in paragraphs 1 to 6. At paragraph 7 the tribunal noted that the case was a polluted water appeal. Paragraphs 8 and 9 of the decision are as follows:
“8. The Appellant contests that there is insufficient evidence to demonstrate that nitrate levels in the Croxdale Beck catchment exceed the concentration set out in the Directive and that is wrong for the Secretary of State to continue to designate this watercourse as polluted. Further, the Appellant believes that both Section 9 of the Methodology and the three principles referred to in the Standley case (mentioned in Paragraph 2 above) justify de-designation of the catchment. The Designation puts the Appellant at a significant financial disadvantage compared to farms located immediately to the north of his landholding which are outside the boundary of this NVZ and not subject to the Regulations.
9. The Tribunal had before it a large body of detailed documentation from both the Appellant and Respondent, submitted over the period between September 2012 and May 2013 inclusive. The statements set out below (sections 11 and 12) are a distillation of the main points raised in that body of documentation. Whilst this notice does not aim to capture every point that the Appellant and Respondent have raised, all the documentation submitted has been taken into consideration.”
(The emphasis is the tribunal’s. We have corrected an obvious typographical slip in paragraph 9)
41. The tribunal’s distillation of the main points raised by the parties were then set out, as follows:
“11. The Appellant argues that Croxdale Beck should not continue to be designated according to evidence which includes the following:
(a) The Methodology is not consistent with the spirit of European Law as laid out in the European Directive 91/676/EEC as explored in the Standley case.
(b) The Methodology is not consistent with the spirit of UK Law as specified in the Nitrate Pollution Prevention Regulations, specifically Regulation 11(4) c, which states that, when carrying out the 4-yearly review of NVZs the Respondent should “take into account changes and factors unseen at the time of the previous designation”. It is also stated that the appeal is justified based on the Appellants submitted data and evidence that shows that the data used by the Secretary of State were incorrect, such that the previous and proposed designation are overly precautionary.
(c) The tools and techniques employed by the Respondent in demonstrating the Methodology were inappropriate. This particularly focuses on the use of the SIMCAT water quality model as an appropriate means of carrying out detailed modelling in relation to agricultural loading of nitrate.
(d) The Methodology was not followed correctly, specifically in relation to the decision-tree applied.
(e) The Respondent has failed to take account of uncertainties of the water quality monitoring date, river flow rate estimates and other datasets used in the modelling; has failed to make best use of the water quality monitoring data available; has failed to seek out all available data regarding other sources of nitrate pollution; has not used the data appropriately within the models applied; and, has not interpreted the raw data and model output data correctly.
(f) In support the Appellant set out details of where specific evidence produced by the Respondent was inaccurate, incorrect, misapplied or misleading.
This evidence includes the following:
(i) The 95-ile nitrate concentration for the catchment outlet monitoring point, Croxdale Hall MP44300030, for the correct assessment years (2004-2009 inclusive) is 11.27mg N/l and therefore within the 11.3mg N/l nitrate threshold.
(ii) Raw water quality sampling data suggests that agricultural contributions to total nitrogen compounds are not significant, that all three monitoring points are unduly influenced by non-agricultural contributions, that all three should be excluded and hence the designation should not apply.
(iii) That the Respondent’s analysis actually suggests that MP 44300093 is unduly influenced by effluent discharges from Bowburn STW, urban sources within Bowburn and highway runoff.
(iv) That the SIMCAT model is inappropriate and the result too uncertain for use. Further SIMCAT models assume all diffuse contributions are from agriculture, which is unrepresentative of the real situation (e.g. there are numerous landfills that provide a loading of Nitrate to the catchment).
(v) That the SIMCAT model has been incorrectly set up, with misrepresentations of processes or data for MPs 44300093, 4300030 and 44300079.
12. The Respondent’s main arguments for continued designation can be summarised as follows:
(a) Modelling
(i) The Respondent submits that the modelling has been carried out appropriately by suitably qualified staff in accordance with industry standard techniques and the NVZ Method Statement.
(ii) The NEAP-N model suggests high agricultural loading over a large proportion of the catchment (i.e. nitrate in the soil as TIN, exceeds 11.3mg N/I over majority of the 1km grid squares considered in the model). These estimated loads have been checked and validated using monitoring data.
(iii) Land use model suggests elevated TIN within the catchment as a whole due to agriculture. Although the 2012 results suggest the 95-ile TIN is 10.4mg N/l. As this is a catchment average value it suggests local concentrations would be higher than this.
(iv) According to the Respondent the level of detail of the water quality modelling that has been carried out in the Croxdale catchment using a SIMCAT model is over and above that which would normally be required within the context of the Methodology.
(v) The SIMCAT model suggests that concentrations of Nitrate within the watercourses (expressed as TIN) are also elevated and that these can not be wholly explained by non-agricultural point sources of nitrate within the catchment including consented STW discharges and landfill discharges. These point sources have been represented in the model appropriately making use of the best available data. The SIMCAT model suggests that contribution from industrial and STW effluent is no more than 45% of the 95-ile TIN nitrate.
(b) Monitoring
(i) There are 4 sampling points within the NVZ: 44300079, 44300086, 44300093 and 44300030, at each of which the observed 95%-ile TIN exceeds the threshold level of 11.3mg N/l.
(ii) The monitoring points are acknowledged to be downstream of STW discharges. However an analysis (based on SIMCAT modelling) showed that, according to the NVZ Method, none of these sites met the criteria for being excluded from consideration. In each case the monitoring point was beyond the mixing zone of the STW, that is, the effluent can be assumed to be sufficiently mixed before reaching the monitoring point such that the readings are an accurate reflection of the nitrate concentration in the river (neither anomalously high or low).
(iii) The most downstream failing monitoring point is that on which the 2012 designation is based, this is MP 44300030. At this point between 2000 and present the nitrate concentrations have fluctuated between 2 and 18 TIN mg N/l with a 95-ile value exceeding 11.3 mg-N/l.
(c) Significance of agricultural nitrate
(i) Based on the modelling and monitoring results the Respondent submits that, even though other factors may have an influence on nitrate concentrations within the waterbody, the contribution from agriculture is not insignificant. A continued designation in 2012 is therefore justified.
(ii) The Respondent also acknowledges that consented discharges also impact on the nitrate pollution observed at locations within the catchment.”
42. Neither party took issue with the contents of paragraphs 1-12 of the tribunal’s decision. Each accepted that paragraphs 11 and 12 adequately summarised the rival contentions before the tribunal. Given the mass of material which the tribunal had to marshal in handling the case before it, that is significant.
43. The tribunal’s findings in the issues it had to decide are in paragraphs 13 and 14. Again they can be set out in full, as follows:
“13. In making this decision, the Tribunal has reached the following conclusions:
(a) The Appellant argues that the NVZ Designation Methodology is not consistent with the spirit of European Law as laid out in European Council Directive 91/676/EEC as explored in the Standley case (EC Case C-293/97) and other cases. The Tribunal considers that the correct position relating to the Designation Methodology is that of the Respondent. Indeed this Tribunal has no basis on which to challenge the adopted methodology.
(b) Croxdale Hall MP44300030 has a 95%-ile TIN concentration (11.27mg N/l) that is representative of nitrate pollution. Even if data from this monitoring point was excluded, designation would arise from the failure of other monitoring points within the catchment.
[there is no sub-paragraph (c)]
(d) The Appellant has helpfully presented the Tribunal with spot sampling data. However, these readings are not statistically significant in that they are readings taken over a short period of time. On the limited basis of information presented there is insufficient data on which the Tribunal can rely. If there were many years of evidence that showed that low nitrate levels had been sustained then this data would be given greater weight. However, even in such circumstances there may be sufficient reason to continue with the designation for the continued or sustained improvement in the water quality.
(e) The Tribunal rejects the Appellant’s assertion that the SIMCAT modelling is not appropriate. The Tribunal believes the Respondent has used the best-available techniques and that, given the timescale allowed, the need for consistency across all NVZs and data constraints, no other approach would likely yield more robust results. The Respondent appears to be fully aware of the limitations and uncertainties of such techniques in using them to come to a judgement regarding each designation.
(f) The Tribunal agrees with the Appellant regarding a number of minor errors and inconsistencies in the SIMCAT model produced for this NVZ. However the Tribunal is of the view that these uncertainties will, on the whole, make little or no difference to the outcome and conclusion of the modelling.
(g) Based on the evidence before it the Tribunal’s opinion is that the prescribed method has been followed both to screen those monitoring points that might be unduly affected by point source discharges based on proximity to a STW discharge and in assessment of the exclusion criteria. The Tribunal is satisfied with the Respondent’s description of how these procedures have been applied as documented in the Respondent’s report dated 18 December 2012.
14. Having considered the body of evidence submitted, the Tribunal finds that there are polluted waterbodies within this NVZ and that agricultural contributions to this pollution are or have recently been significant. On the balance of probabilities, it is therefore correct for the catchment to be designated under the NVZ Regulations. The Appeal is therefore dismissed.”
44. The focus of the submissions for the appellant was on these paragraphs.
The issues on this appeal
45. The first point taken by Mr Rudd for the appellant was that the tribunal misapplied or misinterpreted the decision of the ECJ in Standley (above). He submitted that the tribunal had not paid sufficient regard to the principles of proportionality, polluter pays and rectification of pollution at source when the tribunal considered the level of agricultural contribution to nitrate pollution required to justify a NVZ designation.
46. The answer to Mr Rudd’s first point is to be found in paragraphs 41 and following of the judgment in Standley in which the ECJ addressed the second question referred to it and rejected the submission that an approach which led to designation if the agricultural contribution to nitrate pollution was significant offended against the principles of proportionality, polluter pays, and rectification of pollution at source, or constituted an infringement with rights of property. The ECJ held that none of these principles affected the validity of the Directive as the ECJ had interpreted it; and that that interpretation did not mean that farmers had to pay for pollution to which they had not contributed (see paragraph 51). The submissions on behalf of Mr Johnson placed reliance on paragraphs 46 and 50 of Standley which refer to the Directive containing flexible provisions enabling the Member States to observe the principle of proportionality in the application of the measures which they adopt and that it was for the national court to ensure that that principle is observed. Taken in context those paragraphs refer to the proportionality of the measures taken under action programmes introduced for nitrate vulnerable zones and not to the proportionality of the criterion of “significance”. We therefore reject Mr Rudd’s first submission. We can find no basis on which to say that the tribunal misapplied or misinterpreted Standley.
47. Mr Rudd’s second point was that the Regulations referred to nitrates and that the proper measurement of nitrates was Total Oxidised Nitrogen or TON. He pointed out that the tribunal referred only to measurements of TIN (Total Inorganic Nitrogen) which included the nitrogen contained in ammonia, which did not constitute a nitrate. The answer to this point is we consider to be found in paragraph 1.2 of the Environment Agency response dated 21 March 2013 where it was stated:
“The Nitrates Directive refers to both ‘nitrates’ and ‘compounds of nitrogen’. The DEFRA Method Review Group, having reviewed the Directive and the current scientific understanding of the behaviour of nitrogen compounds in the environment (Nitrates Directive Annex I.B) agreed that the assessment of pollution should properly be based on all measured forms of inorganic nitrogen.”
48. The justification for the measurement by reference to TIN is further explained in paragraph 8.3, sub‑paragraph 5 of the (2012 version) Method Statement for Nitrate Vulnerable Zone Review – Surface Waters (before the tribunal) where it is further stated:
“The inclusion of ammonium in the estimate (TIN) of total potential nitrate pollution is precautionary, based on the rapid oxidisation of ammonium to nitrate in river waters.”
49. That paragraph went on to explain the procedure to be adopted where ammonium from effluent sources could be demonstrated to make a significant contribution. There was no evidence before the tribunal to show that the approach adopted on behalf of the Secretary of State in the Method Statement was inappropriate and we reject the second point.
50. Mr Rudd’s third point was that the decision failed to deal properly with a number of issues and was wrong as a result. The issues were (i) the contribution to the pollution from non-agricultural sources, (ii) errors in the Croxdale SIMCAT model, (iii) an error in taking into account the contribution from the Bowburn STW. For the purposes of this argument the appellant accepts that the water is polluted water but attacks the conclusion that agriculture makes a significant contribution to that pollution.
51. Before addressing these particular issues we should record that, on first reading the tribunal’s decision, our initial reaction was one of surprise. Given the mass of detailed evidence and submissions before the tribunal and the full summaries of the rival submissions in paragraphs 11 and 12, the crucial paragraphs 13 and 14 seemed to contain little reasoning focussed on the question of the significance of the agricultural contribution. Sub-paragraph 13(a) relates to the overall designation methodology, which was not the focus of this appeal. Sub-paragraph 13(b) concludes that the water is polluted water. For the purposes of this argument that is accepted by the appellant. Sub-paragraph 13(d) adequately explains why the water samples taken on Mr Johnson’s behalf were not taken into account. Mr Rudd did not take issue with that. Sub-paragraphs 13(e) to (g) refer to SIMCAT, the undue effect of a STW discharge and the application of exclusion criteria. At least on first reading, they appear terse. We will return to that in detail below. Although a key issue before the tribunal was whether agriculture made a significant contribution to any nitrate concentrations found to be above the prescribed level, this issue is only expressly mentioned in paragraph 14 of the decision, without any reference to the detail. Paragraph 14 is simply a statement of conclusions.
52. This initial impression was reinforced during the hearing by the extent to which Miss Blackmore, with her very detailed skeleton argument, had had constantly to refer back in detail to the submissions made before the tribunal on behalf of the Secretary of State so that she might, after the event, justify the tribunal’s conclusions.
(i) Non‑agricultural sources
53. Mr Rudd submitted that both in the original designation and in the subsequent SIMCAT modelling neither the Environment Agency nor the tribunal sufficiently took into account certain identified sources of non‑agricultural nitrate.
54. Mr Rudd focussed on the quarry landfills in the catchment area. The Coxhoe/Joint Stocks Quarry landfill and the Wingate Quarry landfills had been the subject of a paper commissioned by the Department of the Environment and published in 1995 subtitled “Monitoring for Leachate migration from landfills in Magnesian Limestone Quarries and Old Wingate and Joint Stocks, Durham 1984‑1992”. This paper was before the tribunal. He submitted that no account had been taken of leachate, surface water and ground water emanating from the Coxhoe/Joint Stocks Quarry landfill site nor the Wingate Quarry landfills.
55. Mr Rudd sought to support his submissions by a series of some dozen photographs which included images of leachate pollution. These photographs were not before the tribunal and we decline to admit them as evidence before us. An appeal to the Upper Tribunal is on point of law only. This is evidence which could have been obtained and presented before the tribunal, but was not. There is no justification for admitting this evidence now.
56. Mr Rudd also contended that the headwater concentrations at the Kelloe Beck would have been affected by the Wingate Quarry waste disposal sites and accordingly to attribute the nitrate concentration in the headwater of this water course as being solely agricultural (as the SIMCAT model had done) was incorrect. This mattered not only for Kelloe Beck, which is a main stem of the Croxdale Beck, but also for the Bowburn Beck. For the Bowburn Beck the SIMCAT model had assumed that the headwater concentration there would be the same as in the Kelloe Beck in both cause (i.e. agricultural) and amount.
57. Mr Rudd also submitted that there were diffuse contributions of nitrates from two conurbations within the catchment area and also from the motorway which crossed the catchment area, besides contributions from numerous minor sources such as licensed pumping stations and sewage and storm water overflows.
58. Mr Rudd submitted that although the tribunal in paragraphs 11(f) (iii) and (iv) of its decision had identified the submission on behalf of Mr Johnson regarding non‑agricultural contributions to nitrates, the point was nowhere dealt with in the conclusions contained in paragraph 13 of the tribunal’s decision.
59. Miss Blackmore on behalf of the Secretary of State referred to the submissions of the Environment Agency to the tribunal and, essentially, maintained that the conclusions reached by the tribunal in paragraphs 13(e)-(g) of its decision were sufficient and that the points raised by Mr Rudd were of no significance. She also emphasised that this NVZ designation is a surface water designation rather than a ground water designation (which is correct) and submitted that the impact of leachate from landfill sites would be felt in ground water rather than surface water and was therefore of minor importance.
60. Mr Rudd’s argument includes a challenge to the adequacy in the reasons stated by the tribunal for its decision. In that respect Miss Blackmore reminded us of the speech of Lord Brown of Eaton-under-Heywood in South Bucks DC v Porter (No 2) (HL) [2004] 1 WLR 1953. That case involved a challenge to a planning decision on the ground of a failure to give adequate reasons. At paragraph 36 Lord Brown set out a summary of the main considerations (noting in paragraph 35 that it was neither definitive nor exhaustive):
61. Counsel also cited Bolton Metropolitan DC v Secretary of State for the Environment (1996) 71 P & C.R. 309 for the proposition that it was only necessary for the decision maker to state his or her reasons in sufficient detail to enable the reader to know what conclusion has been reached on the principal important controversial issues and cited Seddon Properties v Secretary of State for the Environment (1981) 42 P & C.R. 26 at 28 for the proposition that decisions are addressed to the parties, who are well aware of all the issues involved and arguments deployed.
62. Turning to non-agricultural sources of nitrate, although the tribunal referred to this point in paragraph 11 of its decision, it is nowhere mentioned in paragraph 13. We are unable to accept Miss Blackmore’s submission that the argument was covered in sub-paragraphs 13(e) to (g). The point is simply absent. Sub-paragraph 13(e) refers to the appropriateness of SIMCAT modelling itself. That is a different issue. It is true that sub-paragraph 11(f)(iv) starts with a reference to the appropriateness of SIMCAT but the second sentence shows that the tribunal recognised that this point was not just concerned with the appropriateness of the model.
63. Sub-paragraph 13(f) refers to minor errors and inconsistencies in SIMCAT but the quarry/landfill argument cannot fairly be called an error or an inconsistency in SIMCAT and so one would not expect it to be dealt with there. In any case the sub-paragraph does not mention non-agricultural sources. Sub-paragraph 13(g) relates to point sources and exclusion criteria. To some extent 13(g) relates to non-agricultural sources because point sources are not agricultural in nature but the sub-paragraph is addressing a different issue. It is not addressing the argument that there are other, non-agricultural diffuse sources of nitrates in the area.
64. So the decision does not deal with the argument. Nevertheless a decision cannot deal with every point and as Lord Brown explained, a decision must only deal with the main issues in the dispute, not with every material consideration. Before deciding whether this decision does or does not satisfy South Bucks we will consider Mr Rudd’s other two arguments.
(ii) The Croxdale SIMCAT
65. The next argument concerned the Croxdale SIMCAT. He pointed out that in the Croxdale SIMCAT the flow from the Bowburn Beck was inputted as a diffuse (namely agricultural) source and took no account of the contribution of a point source, the Bowburn STW. This error was pointed out to the tribunal (see paragraphs 122-9 and 140 of Mr Johnson’s reply dated 22 February 2013). This modelling error was referred to in the Secretary of State’s reply dated 13 January 2014 (addressing Mr Johnson’s grounds of appeal to the Upper Tribunal). The Secretary of State there described it as “a modelling error which had not previously been observed by [Mr Johnson] or [the Environment Agency]” but that is not correct. As we have indicated, the point had been identified on behalf of Mr Johnson before the tribunal.
66. Mr Rudd submitted that this modelling error vitiated the results of the Croxdale SIMCAT. The Secretary of State’s reply of 13th January 2014 (and its annex) sought to demonstrate that the error was of no significance and before us, Miss Blackmore submitted that this was an insignificant error which was sufficiently dealt with by the tribunal in paragraph 13(f) of its decision as making “little or no difference to the outcome and conclusion of the modelling.”
67. The difficulty we face is that it is impossible to tell what the tribunal made of this point. We cannot tell whether Miss Blackmore’s submission is right and the error was regarded by the tribunal as one of the minor errors mentioned in paragraph 13(f), because the errors are not identified. Furthermore we doubt this point can fairly be called a minor error or inconsistency. Treating sources as either point sources or diffuse sources seems to us to be a key part of the setting up of the SIMCAT model. The Bowburn STW should obviously be a point source not a diffuse source. If the appellant’s argument is right then the error undermines a major plank in the respondent’s case. It may be the respondent is right and the consequences of the mistake do not alter the overall result to a significant degree but that would not be because the error was a minor one, it would be because the consequences of a major mistake turn out to be modest. Accordingly in our judgment the decision did not deal with this point either.
(iii) The contribution of the Bowburn STW
68. Mr Rudd’s next point related to the contribution of the Bowburn STW to the total nitrate load immediately downstream. He referred to the calculations made on behalf of Mr Johnson in paragraphs 110 and following of Mr Johnson’s reply dated 20 February 2013 (which was before the tribunal). Those calculations, which were based entirely on data supplied by the Respondent, showed as a matter of arithmetical computation that the STW in question contributed over 87% of the nitrate load of the Bowburn Beck tributary immediately above the next downstream monitoring point. On this footing he submitted the monitoring point should have been excluded, but no modelling was undertaken without it.
69. At first Miss Blackmore sought to contend that the calculations made on behalf of Mr Johnson were wrong on the basis that the mathematics was not correct. Before us she accepted that the mathematics was right, but that the calculations were an inappropriate method of deriving the relative contributions of the STW and other sources to the nitrate concentration downstream of the STW. In order to justify this submission she sought leave to make a further written submission, including hydrological computations relating to the mass balance of the relevant watercourse. Mr Rudd objected on the footing that the submission put in by Miss Blackmore after the hearing included new evidence and fresh arguments which were not before the tribunal and which were only introduced before us when it became apparent that the original argument relating to the STW was not sustainable. We agree with Mr Rudd. An appeal on a point of law to the Upper Tribunal is not the occasion for the introduction of fresh evidence or the deployment of arguments which were not made before the tribunal below. Even if we had admitted Miss Blackmore’s further submission (which we considered on a provisional basis) we do not think that it would have been of assistance to her client, since it would have demonstrated that there was a point before the tribunal which the decision does not deal with.
70. Sub-paragraph 13(g) found that the exclusion of monitoring points had been carried out correctly. In reaching that conclusion the tribunal needed to grapple with the point that the Bowburn STW appears to account for 87% of the nitrate load at the relevant monitoring point. The decision does not deal with that argument and one does not know why it was rejected.
Conclusion
71. The two main issues the tribunal had to address were whether the water in this catchment was polluted and whether, if it was, the contribution made by agriculture to the pollution is significant. The tribunal clearly decided that the contribution was significant (see paragraph 14) and accordingly the tribunal needed to give adequate reasons for that conclusion. A precise determination of the level of agricultural contribution is not necessary (Standley) but it is striking that the tribunal does not state, even approximately, what level it has accepted as or found to be the level of the agricultural contribution in this catchment. Presumably the tribunal essentially accepted the figures advanced by the Environment Agency and held that the scale of the agricultural contribution can correctly be gauged by the figures of 45% (based on land use modelling) and at least 55% (based on the revised SIMCAT report) but nothing is stated.
72. The tribunal’s reasons discernable from the decision were that the SIMCAT model is an appropriate model (sub-paragraph 13(e)), that a number of unidentified minor errors and inconsistencies existed in the SIMCAT model but on the whole they made little or no difference (sub-paragraph 13(f)) and the correct procedure to exclude monitoring points was followed (sub-paragraph 13(g)). .
73. The argument about the possible impact of a contribution from quarry/landfills was recognised by the tribunal at paragraph 11 of the decision (e.g. sub-paragraph 11(f)(iv)). It was clearly sufficiently important to be worth mentioning in its distillation of the main points. However, regrettably, one cannot tell from the decision what the tribunal’s finding on the point was. We have analysed sub-paragraphs 13 (e) to (g) already. Even if the tribunal did regard this point as a minor error or inconsistency falling within 13(f), the decision should at least have given reasons addressing the issues summarised in paragraphs 11 and 12 with the same level of particularity as was used when the issues were summarised. It did not do so.
74. We are less sure about Mr Rudd’s second and third arguments (the erroneous input into the Croxdale SIMCAT and the contribution of the Bowburn STW). They were before the tribunal but neither is summarised in paragraphs 11 or 12 of the decision, which were not criticised. In all probability the tribunal thought they made little or no difference although that was never explained.
75. Standing back, it seems at least to the Upper Tribunal that the Croxdale Beck catchment is a complex hydrological area. It has a number of tributaries coming together, a number of sewage treatment works and other discharges into the water courses, quarry/landfill sites (both closed and in operation), conurbations, a motorway and agricultural land. It may be that the appellant’s arguments really are of no significance but to decide them on their merits requires the assistance of specialist hydrological expertise. That is why the tribunal includes a hydrologist.
76. We sympathise with the tribunal in that the material presented to it was voluminous and detailed. The tribunal recognised this in paragraphs 11 and 12 but fell down in paragraph 13 by not addressing the points in a corresponding level of detail. It was not necessary for the decision to deal with every point and it is always possible on appeal to find points which a tribunal below did not address and then to magnify them unduly on appeal. We were concerned that the second and third arguments may arguably fall into that category but we are sure the first argument does not. Taken with the first argument, the other two arguments support the appellant’s challenge to the usefulness of the results produced by the SIMCAT model.
77. We recognise that SIMCAT was not the only basis on which the Environment Agency argued that the designation was correct, the calculations based on land use models were also relied on. However SIMCAT appears to have been advanced by the Environment Agency to answer the criticisms levelled at the results of the land use modelling and the tribunal’s decision is expressed only by reference to SIMCAT. If the SIMCAT results cannot be relied on then the tribunal’s decision cannot be supported. The designation may still be justifiable on other grounds but that is not how the tribunal approached the matter.
78. For these reasons we consider that the tribunal has made an error of law in failing to give adequate reasons for its decision. We will set the decision aside.
79. Mr Rudd urged us, if we were to set aside the tribunal’s decision, to go ahead and remake the decision ourselves. He particularly emphasised the time and cost which his client had incurred on this matter. We recognise the force of this submission but we decline to take that course. The scheme for dealing with these cases is arranged so that the detailed analysis and weighing up of the hydrological points advanced by Mr Rudd are dealt with by a specialist tribunal equipped with hydrological expertise. The appeal is limited to points of law. Although we have the jurisdiction to remake the decision, we do not have the hydrological expertise (available to the General Regulatory Chamber) to carry out the necessary assessment of the primary materials.
80. Our decision is as set out above.
(Signed on the Original)
Mr Justice Birss
A Lloyd-Davies
Upper Tribunal Judge
Dated: 11 May 2015