11th May 2023
Farmers are potentially more likely to receive letters from the Environment Agency (EA) around upcoming visits and inspections following a recent wave of officer recruitments.
Getting something wrong can potentially leave a black mark on your record with Defra, potentially impacting your other business endeavours, but while this could spark anxiety, here is some key advice to help make sure you are prepared.
Targeted areas of interest
A focus around Slurry, Silage and Agricultural Fuel Oil (SSAFO) regulations is among the areas for inspections featuring in the recent round of letters, with recipients expected to provide information of slurry storage dimensions, capacities and effluent tank calculations – check out the government’s SSAFO guidance for more information and seek sound legal advice if you are still unsure.
Setting the right tone
Receiving a letter confirming an inspection from a regulatory body can, understandably, make people nervous. Whilst the first step should be to assess your farm’s potential strengths and weaknesses in the areas the inspection looks to address, another early consideration should be to seek professional advice as soon as possible.
Setting a co-operative tone at an early stage with the EA could pay dividends should any investigation develops and gives you a chance to put forward your narrative directly to the officers conducting the inspection.
A prudent step at this stage is to open a line of communication with the EA. Should an inspection turn into something further, for example an interview under caution (often known as a PACE interview), having dialogue ongoing gives a better opportunity to request disclosure of the EA’s evidence, which will, in turn, allow you to understand the strength of their case and precisely what matters are being investigated.
It is important for farmers to understand that inspections can be more than just what happens in the farmyard and can also involve a review of paperwork – while the EA are likely to make the focus of their visit known beforehand, it is advisable to ensure both can hold their own under scrutiny.
Ensuring your records are up-to-date and available for inspection is a very simply way to give officers a good first impression, not just helping to make the process smoother but also demonstrating your capability as a business owner.
On the ground, farmers should look to demonstrate consistent and safe farming practices, as well as robust risk management. Ensuring officers have safe, unobstructed access around the farm, enabling them to see what they wish to see unhindered, will also go a long way to securing a positive outcome from the visit.
Most EA inspections are simply to check that the business’ practices are current and don’t often lead to further action. If, however, the EA do find something that they are not happy with, their next step may be to invite you to attend a PACE interview. In that eventuality it is important to take advice as soon as possible.
It is also important to remember that not all offences will necessarily result in the EA bringing criminal proceedings, with a “civil sanctions” regime applying for certain offences, including
polluting a watercourse. This route avoids a court hearing, along with the cost and adverse publicity associated with it.
Of the various civil sanctions available, one option is requesting that the EA agree to an enforcement undertaking. This involves you entering into an agreement with the EA to, among other things, remedy any environmental harm, commit to putting in place measures to prevent future incidents occurring and make a contribution to an environmental charity such as a river trust.
Legal expenses insurance cover
It is also advisable to check your insurance policies promptly, to see if there is cover for legal expenses or remediation costs.
While an investigation of this type may cause businesses severe disruption, taking early legal advice can ensure that you proceed on the right footing and give you the best chance of avoiding prosecution.
The Thrings Planning and Environment team has extensive experience in acting for landowners and agriculture specialists in all areas of planning policy, including providing specialist advice on compliance with complicated regulatory regimes. To find out more and for advice on your business, please do get in touch.