River Action UK, R (on the application of) v The Environment Agency

Regulatory enforcement must secure compliance with the law, but a regulator may adopt a proportionate policy governing how compliance is achieved. It may ordinarily begin with advice and guidance, provided the policy does not amount to a refusal to enforce the law and remains open to exceptions in individual cases.

In assessing the application of fertiliser under regulation 4 of the Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018, soil and crop needs are assessed at the time of application. Future needs over an annual cycle or crop rotation cannot displace that requirement.

A competent authority may discharge its duty to have regard to protected-site requirements through coordinated action within a regulatory structure involving several authorities.

River Action UK sought judicial review of the Environment Agency’s approach to enforcing the Farming Rules for Water in the Wye catchment. It challenged the Agency’s enforcement policy and its use of statutory guidance issued under regulation 15 of the Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018.

The claimant also alleged that the Agency had failed to comply with regulation 9(3) of the Conservation of Habitats and Species Regulations 2017 by failing to have regard to the protected status of the River Wye Special Area of Conservation.

The court was also asked to determine the correct interpretation of regulation 4(1)(a)(i), particularly whether soil and crop needs were immediate or could be assessed over a future crop cycle or rotation.

1. Interpretation of regulation 4. Regulation 4(1)(a)(i) requires each application of organic manure or manufactured fertiliser to be planned so that it does not exceed the needs of the soil and crop on the land at the time of application. The statutory purpose is to prevent surplus nutrients from leaching or running off into watercourses. The wording of regulation 4(1), read as a single sentence and alongside regulation 4(1)(b), supports that temporal interpretation.
2. Regulation 5 provides further contextual support because soil sampling and analysis must be current when an application is made. The court rejected the submission that this construction was impractical or absurd. Evidence showed that farming practices could be adapted, although additional costs and operational changes might result.
3. Enforcement policy. A regulator cannot refuse to enforce legislation entrusted to it. It may, however, adopt a policy governing enforcement and may ordinarily use advice, guidance and staged measures before formal sanctions. The policy must be applied with an open mind, allowing departure where the circumstances justify it. A broad margin of judgment is appropriate because the regulator has statutory responsibility and relevant expertise.
4. The Agency’s statutory guidance and internal documents did not unlawfully fetter its discretion. They were ultimately directed towards achieving compliance with the court’s interpretation of regulation 4. The use of advice and guidance, action plans and reasonable timescales was a proportionate enforcement response.
5. Habitats duty. The Agency had to have regard to regulation 9(3) of the Conservation of Habitats and Species Regulations 2017 when enforcing the 2018 Regulations. The circumstances differed from those in R (Harris) v Environment Agency because phosphorus pollution of the Wye arose from several sources regulated by several authorities. The Nutrient Management Plan, collaborative regulatory work, targeted inspections and the Agency’s enforcement policy demonstrated that the protected-site requirements were being given due regard.
6. The grounds for judicial review therefore failed. The parties were directed to propose the terms of an order giving effect to the judgment.

First-instance judicial review in the High Court (Administrative Court). No prior decision under appeal was stated.