On 24 May 2024, Dove J handed down judgment in the case of R (River Action UK) v Environment Agency [2024] EWHC 1279 (Admin). The claimant had primarily challenged the defendant’s approach to enforcement of regulation 4(1)(a)(i) of the Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018 (also known as the Farming Rules for Water (“the FRfW”)), specifically in relation to agricultural pollution in the River Wye.
It was common ground between the claimant and the defendant that regulation 4(1)(a)(i) requires land managers to plan the application of nutrients (such as fertilisers) with reference to the needs of the soil and crop on the land at the time of application. However, both the Secretary of State for Environment, Food and Rural Affairs (who appeared as interested party) and the National Farmers’ Union (who was granted permission to intervene in the case) disagreed with this interpretation, arguing that regulation 4(1)(a)(i) allowed land managers to take into account crop and soil need beyond immediate needs, such as that arising over a one-year crop cycle. The Judge agreed with the interpretation contended for by the claimant and defendant.
The Judge rejected the claimant’s argument that the defendant had acted unlawfully in relation to the enforcement of regulation 4(1)(a)(i). While it is not open to a regulator to say that it refuses to enforce the law with which it has been entrusted with responsibility by Parliament, it is a recognised and lawful approach for a regulator or prosecuting authority to have a policy to guide the enforcement of the law for which it has responsibility. In going about its regulatory activities, in accordance with public law principles, the regulator should have regard to and apply its adopted policy unless, having scrutinised the particular circumstances of the case, there is good reason for departing from it. In considering the regulator’s approach to this exercise of discretion the court will afford a broad margin of judgment. In this case, the defendant had set out a clear and proportionate approach to undertaking its enforcement activities in relation to the FRfW. The defendant had not unlawfully fettered its discretion in relation to enforcement activity, and it had established that in practice it uses a proportionate approach to enforcement to bring land managers into compliance with regulation 4(1)(a)(i).
The Judge also rejected the claimant’s challenge to the defendant’s conduct based on regulation 9(3) of The Conservation of Habitats and Species Regulations 2017. He accepted that there is a matrix of competent authorities with overlapping regulatory responsibilities relevant to the discharge of the requirements of these Regulations, with the defendant affording them the necessary priority.
Read the full judgment here.
Hugh Mercer KC and Naomi Hart acted for the National Farmers’ Union as intervener.
