National Farmers Union of England and Wales, R (on the application of) v Welsh Ministers

A substantive legitimate expectation requires a representation that is clear, unambiguous and devoid of relevant qualification. Statements made during consultation or in provisional policy documents must be read in their full context. A public authority’s decision may be challenged where it relies on an irrational factual premise or fails to take account of relevant evidence and material considerations. However, a court will not substitute its assessment of the merits for that of the decision-maker. Detailed evidence addressing environmental, economic and practical effects may demonstrate that relevant matters were considered. The claim was dismissed because the alleged expectation was not legally enforceable and the complaints about the Regulations were merits-based or unsupported.

The claimant sought judicial review of the Water Resources (Control of Agricultural Pollution) (Wales) Regulations 2021. The Regulations introduced agricultural pollution controls throughout Wales, including limits on nitrogen applications and slurry-storage requirements, but contained no derogation for farms with at least 80% grassland.

The claimant alleged a substantive legitimate expectation that a derogation would be included, irrational reliance on inaccurate factual material, failure to consider relevant evidence and impacts, and breach of statutory well-being and Welsh-language duties. It also sought permission to amend the claim shortly before trial to add a quashing remedy.

1. Legitimate expectation. The relevant test was whether the Defendant’s statements, read individually and collectively, were clear, unambiguous and devoid of relevant qualification. The consultation documents and draft-regulation materials were provisional and contextualised by contrary or qualifying material. They could not found an enforceable expectation that the final Regulations would contain a derogation.
2. The claimant’s alternative reliance on historic practice or implied promise was not properly pleaded. Late amendments or new bases of claim in the Administrative Court should be permitted only in very rare circumstances, which were absent. In any event, the evidence did not establish a representation meeting the required standard.
3. Wednesbury and relevant considerations. A decision may be vitiated by an irrational view of relevant facts or by failure to take account of relevant evidence and material considerations. The complaint concerning the Minister’s statement about non-compliance with earlier slurry-storage requirements was, in substance, a dispute about legal interpretation. The statement was made after the Regulations had been made and no material connection with the decision was established.
4. The Ministerial Advice, Regulatory Impact Assessment and supporting material addressed the all-Wales approach, environmental benefit, economic effects, farm viability, tenant farmers, planning requirements, transitional periods, bovine tuberculosis, Brexit and the Welsh language. The claimant’s objections were merits-based and did not establish unlawfulness. The transitional periods, together with regulatory discretion and appeal rights, were not shown to be unreasonable.
5. The well-being and Welsh-language duties had been considered in the impact assessment. Regulations 44 and 45 also created monitoring, review and possible alternative-measures mechanisms, although the court did not finally determine the wider issues concerning judicial review of regulations made under the negative procedure.
6. The application to amend the relief to include a quashing order was refused because it was made shortly before trial without adequate explanation for the delay, and would serve no particular purpose. The claim was dismissed.

First-instance judicial review decision. The judgment does not state any prior appellate decision.