Is your land at risk of being designated as an NVZ?
DEFRA has recently undertaken a review of the areas which are designated as Nitrate Vulnerable Zones (NVZs) and the Secretary of State (SoS) has been provided with a list of those parcels of land which the Environment Agency (EA) proposes should be designated from 1 January 2013. The DEFRA website includes links to overview and interactive maps of the proposed NVZs and the EA has published a document setting out the evidence supporting each individual recommendation - see the EA website.
The SoS anticipates sending notification letters to all owners and occupiers of the recommended NVZs by the end of June 2012. If you or any of your clients receive such a letter, it is important to note that any appeal against the notice must be received within 28 days of the date of the same. DEFRA is therefore encouraging those effected who may wish to appeal to review the supporting evidence and to start preparing their cases as early as possible.
What is the effect of land being designated as an NVZ?
NVZs are governed by the Nitrate Pollution Prevention Regulations 2008 (as amended) ("the Regulations"). The Regulations set out a list of actions which landowners must take, including the following:
- Plan the amount of nitrate to be applied to crops via fertilizers and keep accurate records
- Avoid spreading fertilizers at certain times of year, such as autumn and early winter and when the ground is saturated or frozen
- Ensure there is sufficient storage capacity on the land for six months' storage for pig slurry and poultry manure and five months' worth for other slurries.
Please see our previous newsflash for further details about the requirements.
Who determines an appeal?
Any appeals which are submitted will be considered by the First-tier Tribunal (Environment) which is independent of DEFRA. The Tribunal (a panel of two made up of a judicial specialist and a technical expert) will assess the evidence submitted and determine whether the land should be designated as an NVZ. If an appeal is successful, then the land will not be designated as an NVZ. It is however key to note that each party will be required to cover their own costs in dealing with the appeal.
What are the grounds of appeal?
The grounds of appeal are that the land which is the subject of the appeal should not be included within an area proposed for designation as an NVZ because it, or any part of it (a) does not drain into water which the SoS identifies as being polluted or has been identified as such in Wales or Scotland or (b) drains into water which the SoS should not identify as being polluted. Justification should be provided to support the grounds together with documentary evidence such as maps or expert reports.
What should you do if you are affected?
As the time period for appealing against the notification of recommended designation is short, it is advisable to check whether you or your clients' land is included in the proposals' maps and also review the justification for this. You will then be in a better position to decide if you wish to appeal and to ascertain whether there are any grounds for doing so and the availability of supporting evidence. For any further information on this, please contact Alex Madden.