Joseph Strand (AJ Strand & Sons) v The Secretary of State for Environment, Food and Rural Affairs

Background

1. This appeal concerns land at Burgess Farm in Whitstable, Kent.

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 appeal

5. On 22 May 2025 the Appellant appealed against a written notice dated 12 May 2025 (“the Notice”) that land occupied by his business as a relevant holding falls within NVZ S515. The prefix ‘S’ stands for surface water. The Notice states that the designated areas largely remain the same as they were in 2021-2024 .

6. In summary, the grounds of appeal are: a. This field does not drain into any sources of water. b. This is a family run farming business that began renting the land recently. They always fully comply with all regulations on applying fertilisers and are well educated with relevant qualifications. Two family members are registered National Register of Sprayer Operators, and one member is BASIS registered. c. They understand how and when to apply fertiliser and make Nutrient Management plans for all the land they farm each year. d. Although they take steps to be NVZ compliant, the Appellant objects to this field being placed into an NVZ on the grounds of it not draining into water. e. There are some "ponds" marked on the RPA map for this field, but these are occasionally wet field corners. A large buffer is always left around them, and shrubs prevent anyone from being able to get close to these areas. Aside from the "ponds" there is no other water course for this field to flow into.

7. A map is produced by the Appellant outlining the field proposed for inclusion within the NVZ. It is annotated to say: “As you can see there is no water source for any Nitrogen to run into.” An aerial photograph of the field is also supplied identifying the locations of the two “ponds” along with photographs of the “ponds” being “overgrown and entirely dry”. The outcome sought is for the field to be left out of the new NVZ. We treat this as a Type A appeal. The response

8. The Secretary of State’s response to the appeal states that t his is an existing catchment NVZ, originally designated in 2002. The field lies within the drainage catchment of the River Great Stour NVZ (S515). Regardless of the proximity to surface water, any rainfall within the catchment can still reach the river by overland flow and percolation through the soil and contribute to the nitrate levels reaching waters designated as polluted. The River Great Stour NVZ has been designated in accordance with the published policy paper titled “Method for designating Nitrate Vulnerable Zones for surface freshwaters”.

9. When the Appellant failed to reply to emails from the Environment Agency sent on 13 and 26 August 2025 seeking further evidence of his ‘does not drain’ argument, the Respondent applied to strike out the appeal. The Tribunal refused the strike-out application as being premature on 29 September 2025. At that stage, the Tribunal was yet to direct the parties to elaborate upon their cases.

10. Over the course of the appeal, the Environment Agency has submitted additional information to support the Respondent’s case. This includes mapping showing a watercourse less than 100m to the east of the Appellant’s field. They infer from contour lines that the field is located on a brow of a hill with a slope going south/south-east in the direction of the river.

11. From the ALERT mapping tool and LIDAR data, the Environment Agency submits that most of the field has a south-east/east aspect which would result in drainage going into the NVZ. The northern part of the field with some northerly aspect would result in a small area draining out of the NVZ. There is no overland flow data for the actual field. The conclusion reached by the Environment Agency is that the majority of drainage from the field flows into the drainage catchment of the River Great Stour NVZ. As over 50% of the field drains to the NVZ, the whole field is designated.

12. The Appellant did not reply or provide any additional information. Main issue

13. The main issue is whether the Secretary of State was wrong to identify that water from this land drains into NVZ S515. Consideration and Conclusions

14. An NVZ catchment is defined by the topography with adjustments made to correspond with the field boundaries. All land that receives rainfall drains somewhere. The topographical maps show that the Appellant’s land is not a flat field. It has a slope going in a south-easterly direction.

15. The LIDAR data shows the crest of a hill running through the (northern) top of the Appellant’s field. The topographical maps show that surface water from the northern part of the field would drain to the north flowing out of the NVZ. For the most part, surface water would flow in a south-easterly direction towards the NVZ.

16. The Appellant’s aerial image of the field identifies two areas at the outer southern corners of the field where he says that water occasionally pools. He describes these areas as “ponds”. There are clear depressions in these areas in the topography mapping. It can be ascertained from the topographical analysis that the “ponds” would not capture all surface water flow off the Appellant’s field. Even if they did, the surface water could still leach through the soil and leach downhill.

17. It may be the case that surface water only leaves the field in high rainfall with the bulk of overland flow intercepted by the field boundary shrubbery. However, neither the shrubbery nor the field buffer will prevent water going through the soil zone and rapid run-off occurring. Based on the topographical evidence, there will be water flow leaving the field into the NVZ.

18. The Tribunal can understand the Appellant’s frustrations at the NVZ designation especially as his family run business only recently started renting the field. The Appellant refers to good practices adopted by the business, including Nutrient Management plans, and the depth of their knowledge and qualifications in land management. However, none of these factors can be taken into account in establishing whether or not the land drains into the NVZ.

19. The Tribunal is satisfied, on the balance of probabilities, that water from this field occupied by the Appellant does drain into NVZ S515. The Secretary of State’s decision was not wrong, and the appeal must be dismissed.