2 The Code of Good Agricultural Practice

14.100 Concessions to the agricultural interest are also made in the laws governing pollution control. ‘Good’ agricultural practice, which meets officially prescribed standards, may in some situations confer privileges on the producer under the pollution legislation.

(i)the Code of Good Agricultural Practice for the Protection of Water (1991, revised 1997),

(ii)the Code of Good Agricultural Practice for the Protection of Air (1993), and

(iii)the Code of Good Agricultural Practice for the Protection of Soil (1994).

These gave detailed technical guidance to producers, aimed at protecting and enhancing the rural environment. They were not legally binding and enforceable per se, although their terms had indirect legal effect. The Codes were replaced in 2009 by a composite code of practice covering good agricultural practice for the protection of both water, soil and air – Protecting Our Water Soil and Air: A Code of Good Agricultural Practice for farmers growers and land managers.²²⁴

(a)Water

14.101 The Code of practice is a statutory Code in relation to water protection issues, having been introduced under s 116 of the Water Act 1989. The Code of Good Agricultural Practice previously in force, prior to 1991, had direct statutory effect, in that compliance with its provisions constituted a defence to a criminal prosecution for water pollution. This was heavily criticised as impairing the environmental interest at the expense of conferring on farms a ‘right to farm’ – the terms of the Code were wide and non-compliance difficult to prove thus making prosecutions difficult to mount.

14.102 The current version of the Code is that revised and reissued in 2009. The Code has indirect legal enforceability, in that under the Water Resources Act 1991²²⁵ a contravention of its terms must be taken into account by the Environment Agency when deciding how and when to exercise its statutory functions in two situations viz. when issuing prohibition notices to prevent discharges of trade effluent, and when exercising its powers under the Control of Pollution Regulations 1991 (above) eg when deciding whether to issue notices applying the precautionary standards of the regulations to otherwise exempt farm buildings and equipment. Breach of the Code does not, of itself, give rise to criminal liability. Conversely, however, neither does compliance constitute a defence to a pollution charge brought under the Environmental Permitting Regulations 2010 (discussed above). The Code therefore has considerable indirect legal effect – compliance with its terms will make prosecution for a pollution incident less likely, and (moreover) it will make it less likely that statutory controls will be imposed by the Environment Agency on sewage slurry and silage facilities on the farm concerned. It will also be relevant in a civil action for nuisance (brought for example by a neighbouring landowner), in that its terms are relevant to any decision whether a farmer’s land use has been ‘reasonable’ or not.²²⁶

14.103 The Code also has an important role, albeit indirect, in the implementation of the Nitrates Directive, discussed above. The Directive requires the publication of advice on ‘good agricultural practice’ for Nitrate Vulnerable Zones covering such matters as manure application rates and precautions to prevent nitrate leaching. The Code executes this function.

14.104 In the provisions implementing NVZs the Code has a central role in defining the parameters of farm practices that are deemed sound practice – and are not therefore to be compensated from public funds – and distinguishing these from land management going beyond good practice that will, as a consequence, be compensated. The Code is therefore to this extent normative, in that it indicates those farm practices that the authorities will expect all farmers to adhere to without the payment of financial incentive payments from the public purse. Additional obligations – such as those in agreements under the former Nitrate Sensitive Areas programme – which go beyond this are deemed to involve incremental environmental benefit and, accordingly, receive public subsidy in the form of grant payments to farmers entering into management contracts.

(b)Air

14.105 The Code of Good Agricultural Practice gives detailed guidance to producers as to the law, pollution problems arising from many farming activities, and technical advice on how to avoid contravening the law on pollution control (above). The Code of Practice is not a statutory code in relation to these matters, however. Neither does it have legal effect in relation to aerial pollution issues – whether direct or indirect. The Code is advisory only and has no legal status per se. Compliance with the Code’s detailed guidance does not give a defence to a pollution charge under the Environmental Permitting Regulations 2010 or the Environmental Protection Act 1990 eg for contravening a nuisance abatement notice or operating a prescribed process without permission. Adherence to its terms does not, for instance, constitute a defence of ‘best practicable means’ to a charge of failing to comply with an abatement notice under s 80 of the Environmental Protection Act 1990.²²⁷ Cf. the Code of Good Agricultural Practice has limited indirect legal effect under the Water Resources Act 1991 in relation to water pollution offences and management.

(c)Soil

14.106 The Code of Good Agricultural practice for the Protection of Soil was the last of the Codes to be introduced, and was published by MAFF in 1994. It is now incorporated into the composite Code of Good Agricultural Practice for Water, Air and Soil published by DEFRA in 2009. Unlike the Code in its application to water pollution matters, it is not in relation to soil protection issues a statutory code. It is, rather, a practical guide giving producers advice and information, both as to how to avoid causing long-term degradation of the soil, and how to maintain soil fertility levels at the optimum level to support plant life. Causing a reduction in soil fertility, and the causing of pollution of the soil, are not offences per se – unlike the comparable offences of causing water pollution, for example.²²⁸ There are a limited number of legal restrictions on land use that do, however, impose liability for practices harmful to the soil structure and its fertility. So, for example:

•removing large quantities of top soil may require planning permission under s 55 of the Town and Country Planning Act 1990,²²⁹ as soil stripping will be an operation constituting ‘development’. The removal of more than 5 cubic yards of soil for sale in any three-month period, without planning permission, is an offence under the Agricultural Land (Removal of Soil) Act 1953. A defence is available if it can be shown that the removal is reasonably necessary for the purpose of cutting peat or turf.

•The application of sewage sludge to land as a fertiliser is regulated under the Sludge (Use in Agriculture) regulations 1989.²³⁰ This is necessary because of the concentration of heavy metals²³¹ present in sewage sludge that, if released onto land in uncontrolled quantities, could cause damage to humans, animal life and plants. The regulations prevent the release of sewage sludge with concentrations of heavy metals exceeding specified limits by reference to the soil pH, and prohibit the grazing of animals on land for three weeks after sewage sludge has been applied.

14.107 The Code of Practice gives a wide range of practical advice on these issues, on the prevention of soil degradation, and on the protection and enhancement of soil fertility. Because it has no statutory effect – either directly or indirectly- adherence to the Code’s guidance will not confer immunity from prosecution if the laws on soil protection are broken. It will, however, greatly reduce the likelihood of this happening.

1Directive 2000/60/EC.

2Directive 2006/118/EC.

3Directive 2008/98/EC.

4Directive 2010/75/EU.

5Above para 13.01 ff.

6Environmental Permitting (England and Wales) Regulations SI 2010/675 amended by: SI 2010/676, SI 2010/2172; SI 2011/2043 and 2933; SI 2012/396 and 630; SI 2013/390 and 766; SI 2014/255 and 2852; and SI 2015/324, 918 and 934.

7See the Environmental Civil Sanctions (Miscellaneous Amendments) (England) Order 2010, SI 2010/1159.

8See Protecting Our Water Soil and Air: A Code of Good Agricultural Practice for farmers’ growers and land managers (2009, DEFRA) esp. at para 21. Discussed further below at para 14.99; available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/268691/pb13558-cogap-131223.pdf Table 1, p 3.

9The Environment Agency categorises pollution incidents into four categories for monitoring purposes: category 1 (the most serious) will involve persistent and extensive effects on the quality of land, water or air or major damage/impacts on ecosystems, property or amenity value (and in the case of water impact the closure of drinking water abstraction facilities); Category 2 (significant but less severe impacts) will involve significant effects on the environmental media, significant ecosystem or property damage; Category 3 (relatively minor impacts) and Category 4 (no appreciable impacts as described above). See www.environment-agency.gov.uk/yourenvironment/for a description of the pollution incident categories.

10Agriculture and Natural Resources Report – Part 2 (Environment Agency 2002) Table 4.1 (Farm Pollution Incidents and Prosecutions from 1985–2000): available at www.environment-agency.gov.uk.

11See www.environment-agency.gov.uk/yourenvironment/pollution incident categories for links to the Agency’s common data reports of pollution incidents to air water and land, and an overview.

12Reg 12, Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675 as amended.

13Council Directive 91/676/EEC, [1991] OJ L 375/1.

14Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675, reg 13, Sch 21, para 3, as amended.

15Water Resources Act 1991, s 82.

16Surface Waters (Classification) Regulations 1989, SI 1989/1148, Surface Waters (Dangerous Substances) (Classification) Regulations 1989, SI 1989/2286.

17Surface Waters (River Ecosystem) (Classification) Regulations 1994, SI 1994/1057.

18Bathing Waters (Classification) Regulations 1991, SI 1991/1297.

19Under Water Resources Act 1991, s 83.

20Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675, Sch 21, para 3(1), as amended.

21Reg 12 ibid. As to which see further below para 14.17 ff.

22Schedule 21, para 3(2) ibid.

23Principally (but not solely) the following : Directives 78/659/EEC on the quality of freshwater needing protection or improvement in order to support fish life, 80/68/EEC on the protection of groundwater against pollution caused by certain dangerous substances, 80/778/EEC on the quality of water intended for human consumption (the drinking waters directive), and 91/676/EEC on the protection of waters against pollution caused by nitrates from agricultural sources (the nitrates directive).

24Schedule 5, Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675, Sch 5 as amended.

25Schedule 5, para 7 ibid.

26See Sch 5, paras 9 and 15 ibid.

27Schedule 5, para 17 (3) ibid.

28Schedule 5, para 21 ibid. Transfer can only be made by the regulator (in this case the Environment Agency).

292010 Regs, Sch 5, para 20(4).

302010 Regs, Sch 5, para 12.

312010 Regs, regs 12(1), 38(1)(a) ibid. These were formerly in the Water Resources Act 1991, s 85 and prior to 1991 were to be found in Control of Pollution Act 1974, ss 31, 32.

32See above para 14.12.

33Schedule 21, para 3(1), Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675 as amended.

34Schedule 5, para 12(1)(a) ibid.

35See R v Dovermoss Ltd [1995] ELM 106. Pollution of waters thus diverted or enlarged beyond their normal course will therefore amount to pollution for these purposes: for an example see the facts of the Dovermoss case, discussed below.

36Environment Agency v Brock Plc. [1998] Env LR 607.

37National Rivers Authority v Biffa Waste [1996] Env LR 227 at para 14.21.

38[1995] ELM 106.

39[1972] 2 All ER 179 per Lord Wilberforce.

40Ibid, [1972] 2 All ER 179.

41See National Rivers Authority v. Yorkshire Water Services Ltd [1995] 1 All ER 225.

421989] Crim LR 43.

43[1995] 1 AC 444.

44In this case they had a specific defence, however, under s 87(2), Water Resources Act 1991. This provides a defence where there is an unconsented discharge into the sewerage system by a third party that the sewerage undertaker could not reasonably be expected to have prevented. For a similar decision see also Attorney General’s Reference No 1 of 1994 [1995] 1 WLR 599 (operating a sewage system in an unmaintained state sufficient to ground liability).

45[1989] Crim LR 43.

46See Price v Cormack [1975] 1 WLR 988, Wychavon DC v NRA [1993] JEL 121, NRA v. Welsh Development Agency [1993] Water Law 52.

47[1975] 1 WLR 988.

48It is arguable that a more restrictive interpretation of the ‘causing’ offence, along these lines, would have had a limited effect on its scope, however, as it is the act that causes the pollution incident which must be deliberate, not the ultimate result. see eg Callow v Isle of Man Fatstock Marketing Association [1993] Water Law 197.

49[1998] Env LR 396.

50[1972] AC 824.

51[1971] 2 All ER 357. And see National Rivers Authority v Wright Engineering Co Ltd [1994] 4 All ER 281.

52[1998] Env LR 396.

53[1998] Env LR 607.

54See Shanks and McEwan (Teeside) Ltd v Environment Agency [1997] Env LR 305.

55[1993] Env LR D1.

56Another case where the outcome might well have been different had the polluter been charged with the knowingly permitting offence (rather than causing pollution) is Wychavon DC v NRA [1993] 2 All ER 440. The council in this case was acting as agent of the water company in maintaining a sewer that subsequently became blocked. It was not held to have ‘caused’ the resulting pollution as it had remained inactive. This decision was disapproved by the House of Lords in Empress Cars v NRA [1998] Env LR 396 (above n 12), and if decided now would probably also result in a successful prosecution for the ‘causing’ offence.

57See Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675, reg 40(1).

58Cf the similar defence to damaging a wildlife site notified as an SSSI contrary to Wildlife and Countryside Act 1981, s 28E (above Chapter 13 para 13.40).

59[2003] Env LR 29.

60The Control of Pollution (Silage, Slurry and Fuel Oil) Regulations 1991 SI 1991/324. The 1991 Regulations were made under of the Water Act 1989 Act, s 110 a provision that was then consolidated into Water Resources Act 1991, s 92.

61See reg 12 ibid.

62SI 1991/324, reg 11. Notice must be served on the Environment Agency at least 14 days before the structure; slurry storage system or fuel oil storage area is to be used for keeping or storing silage, slurry or fuel oil, as the case may be.

63SI 2010/639, as amended by SI 2010/1091.

64SI 2010/639, as amended, reg 3.

65Reg 3(4) ibid.

66Ie silage made on open land by any method different from that involving the use of sealed bales or bags : see reg 3(1)(c) ibid.

67Reg 3(1)(c) ibid.

682010 Regs, reg 7.

69Reg 3(3) ibid.

702010 Regs, reg 4(1) ibid.

71British Standards Institution Code of Practice on Buildings and Structures for Agriculture, BS 5502 Part 50, 1989: see SI 2010/639, Sch 2, paras 3, 4 ibid.

72Reg 4(2) ibid.

732010 Regs, reg 5(1).

742010 Regs, reg 5(2).

752010 Regs, reg 6. The exemption also applies if a contract to erect the facility was concluded before 1 March 1991, or its construction was commenced before 1 March 1991, provided the construction work was completed by 1 September 1991: reg 6(1)(c) ibid.

76Ie at any time after 1 March 1991; reg 6(1)(c) ibid. Exemption is not lost if the work started before 1 March 1991 and was completed by 1 September 1991.

77See generally 2010 Regs, reg 7.

78Reg 8 ibid. The right of appeal must be exercised within 28 days, beginning with the day on which the notice was served

79Council Directive 80/778/EEC, [1980] OJL 229/11.

80European Commission v United Kingdom [1993] Water Law 59, Case C337/89.

81European Commission v United Kingdom [2000] ECR 1-10979.

82Council Directive 91/676/EEC, [1991] OJ L 375/1.

83Nitrate Pollution Prevention Regulations 2015, SI 2015/668. The scheme was originally introduced by the Protection of Water against Agricultural Nitrate Pollution Regulations 1996, SI 1996/888.

84See Protecting Our Water Soil and Air: A Code of Good Agricultural Practice for farmers growers and land managers (2009, DEFRA) discussed below. Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/268691/pb13558-cogap-131223.pdf.

85Nitrate Sensitive Areas (Designation) Order 1990, SI 1990/1013.

86SI 1994/1729.

87Council Reg (EEC) No. 2078/92 of 30 June 1992 (OJ L215/83).

88The 22 NSA areas were: North Lincs.Wolds, Pollington, Hatfield, Carlton, North Newbald, Springwells, North Notts, Amen Corner, Far Baulker, Aswarby, Sherriffhales, Grindle Forge, Bednall, Hopwas, Oakelely Farm, Kinver, Hagley, Bromsberrow, Duckaller, Sedgeford, Slip End and Birchmoor (SI 1994/1729, reg 2(1), Sch 1).

89SI 1995/1708 revoked the 1990 NSA designation order, as from 1st June 1996, and added the ten pilot NSA to the list in Sch 1 to the 1994 Order. The ten areas added are: Sleaford, Branston Booths, Ogbourne St.George, Old Chalford, Egford, Broughton, Wildmoor, Wellings, Tom Hill and Kilham. Like the 22 areas designated under the 1994 Order, these areas are delineated in pink on official maps kept by the Ministry for the purpose, and available for public inspection.

90SI 1994/1729, reg 7. The 5-year period commences on 1 October in the year in which the application for grant aid under the scheme is made.

91See ibid. Sch 6 for the rates of payment per hectare under the different management options available under NSA agreements.

92Ibid, Sch 2.

93Council Directive 1991/676/EEC, [1991] OJ L 375/1.

94SI 1996/888. Sch 1 to the 1996 Order listed 68 designated zones for this purpose.

95SI 2015/668.

96See SI 1996/888, Sch 2 for the criteria originally used for identifying waters at risk of pollution and requiring designation.

97[1999] ECR 1-2626; Env LR 801.

98European Commission v United Kingdom [2000] ECR 1-10979.

99The Protection of Waters Against Pollution from Agriculture: Consultation on the implementation of the Nitrates Directive in England (DEFRA, August 2007): available at www.defra.gov.uk/environment/water/quality/nitrate.

100An interactive map showing the current NVZs in England can be accessed at: http://maps.environment-agency.gov.uk/wiyby/wiybyController?x=357683.0&y=355134.0&scale=1&layerGroups=default&ep=map&textonly=off&lang=_e&topic=nvz (last accessed 18 August 2015). There has been a net reduction in the area covered by NVz s to approximately 58% of the agriculture area in England.

101See Guidance on Complying with the Rules for Nitrate Vulnerable Zones in England for 2013 to 2016 (DEFRA, November 2013). Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/432141/pb14050-nvz-guidance.pdf (accessed 18 August 2015).

102SI 2015/668, reg 4.

103The first review under the 2015 Regulations must be undertaken before 1 January 2017: subsequent reviews must take place at four yearly intervals thereafter.

1042015 Regs, regs 7 and 8.

105Compliance with the NVZ prescriptions is SMR1 in the cross compliance regime: as to which see Chapter 15 below para 15.14 ff.

106SI 2015/668, regs 7, 8, Sch 3.

107See regs 10 et seq ibid.

108The Farm Waste Grant (Nitrate Vulnerable Zones) (England) Scheme 2003, SI 2003/562.

109See Water Resources Act 1991, s 93. These provisions were originally introduced in the Water Act 1989.

110Water Protection Zone (River Dee Catchment) Designation Order 1999, SI 1999/915.

111See Protecting Our Water Soil and Air: A Code of Good Agricultural Practice for farmers growers and land managers (2009, DEFRA). Discussed further below at para 14.99 ff, Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/268691/pb13558-cogap-131223.pdf.

112SI 2010/639, as amended by SI 2010/1091. See above para 14.25 ff.

113Water Resources Act 1991, s 97; Water (Prevention of Pollution) (Code of Good Agricultural Practice) (England) Order 2009, SI 2009/46.

114SI 2009/46, reg 2.

115See Protecting Our Water Soil and Air: A Code of Good Agricultural Practice for farmers growers and land managers (2009, DEFRA). Discussed further below at para 14.99 ff, available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/268691/pb13558-cogap-131223.pdf.

116See Environmental Protection Act 1990, ss 79, 80.

117Section 79(1) ibid.

1181990 Act, s 80.

119See 1990 Act, s 82.

1201990 Act, s 80(4), (6).

121See s 79(9) ibid.

122[1996] Ch 19. Approved in Coventry v Lawrence [2014] UKSC 13 (see Lord Neuberger at judgment para 93).

123[2014] UKSC 13, 46.

124Coventry v Lawrence [2014] UKSC 13, per Lord Neuberger, judgment at para 94.

1See Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QB 343. But note the qualifications expressed in Coventry v Lawrence [2014] UKSC 13.

125Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312 (operation of a landfill site with permission under a waste management license). See also Blackburn v ARC Ltd [1998] Env LR 469.

126Notably Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312; Coventry v Lawrence [2014] UKSC 46.

127SI 2015/596, as to which see Chapter 12 para 12.49 ff above.

128Council Directive (EC) 96/61/EC. Replaced by Directive 2008/1/EC of the European Parliament and of the Council concerning Integrated Pollution prevention and Control, [2008] OJ L 24 29.1.2008 p 8.

129SI 2000/1973, made under the Pollution Prevention and Control Act 1999.

130Directive 2010/75/EU of the European Parliament and of the Council concerning Integrated Pollution Prevention and Control.

131Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675 as amended.

132SI 2010/675 as amended. These were formerly to be found in Sch 1 to the Pollution Prevention and Control (England and Wales) Regulations 2000, SI 2000/1973.

133SI 2010/675, Sch 1, Part 2, Chapter 6, Section 6.9 (intensive farming).

134See the definition of ‘installation’ in Sch 1, Part 1, para 1 to SI 2010/675. Also regs 7 and 8 ibid (definitions of ‘operator’ and ‘regulated facility’).

135See 2010 Regs, reg 12(1)(a).

136Ibid. reg 38(1) and (2). The offence is punishable on summary conviction by a fine not exceeding £50000 or imprisonment for a term not exceeding 12 months, or on indictment to an unlimited fine and/or imprisonment for a term not exceeding 5 years (reg 39(1) ibid.)

137See 2010 Regs, Sch 5, paras 5 and 6 ibid.

1382010 Regs, Sch 5, para 15(3) ibid. The relevant period is two months in the case of an application to transfer an environmental permit.

139See reg 46 ibid.

140See reg 15 ibid.

141See ibid reg 10(3).

142The question will be whether the operator is ‘able’ to comply with the conditions, and a history of past non observance will be relevant to this issue, which is a practical one: see R v Secretary of State for the Environment and RJ Compton and Sons ex parte West Wiltshire DC [1996] Env LR 312.

1432010 Regs, reg 11(2).

144Ibid. reg 11(3).

145Ibid. reg 12(1)(b) and (2).

146Ibid. reg 12(6).

147Intensive Farming Environmental Permitting Guidance (Environment Agency, EPR 6.09 Sector Guidance Note January 2010). Available at: https://www.gov.uk/government/publications/intensive-farming-introduction-and-chapters.

148See SI 2010/657, Sch 7, para 3 (high level of protection) and para 3 (requirement of adherence to Art 3 of the Directive, which sets the Best Available Technique standard).

149See Art 3(10) of Directive 2008/1/EC.

150See Annex 111 of Directive 2008/1/EC.

151Above para 14.70.

152‘Integrated pollution Prevention and Control: Reference Document on Best Available Techniques for the Intensive Rearing of Poultry and Pigs’, (BREF document ILF) (European commission, July 2003) available at:

http://eippcb.jrc.ec.europa.eu/reference/BREF/irpp_bref_0703.pdf (last accessed 20 August 2015). The BREF guidance is in the process of being revised: see draft revised guidance available at: http://eippcb.jrc.ec.europa.eu/reference/BREF/IRPP_D2_082013online.pdf (accessed 20 August 2015).

153See SI 2010/657, Sch 1, Part 2, Ch 4, Sections 4.3 and 4.4.

154Above para 14.17 ff.

155See SI 2010/657, regs 20–25.

156Ibid. reg 22.

157See R v Environment Agency ex parte Petrus Oils Ltd [1999] Env LR 732.

158Environmental Protection Act 1990, s 152.

159The Crop Residues (Restrictions on Burning) Regulations 1991, SI 1991/1590.

160SI 1993/1366.

161Common Agricultural Policy (Control and Enforcement, Cross-Compliance, Scrutiny of Transactions and Appeals) Regulations 2014, SI 2014/3263, Sch 2, para 2. Below Chapter 15 para 15.39 ff.

162SI 1993/1366.

163SI 1993/1366, reg 4.

1641993 Regs, reg 5 and Sch 2.

165See Sch 2 ibid.

166Ibid, Sch 2, para 1.

167Ibid, Sch 2, para 3.

168Schedule 2, para 4(c), ibid.

169Ibid, Sch 2, para 4(d).

170Ibid, Sch 2, para 5.

171Ibid, Sch 2, para 7.

172Ibid, paras 8 and 9.

173Ibid, para 6.

174Ibid, reg 10.

175Ibid, regs 5 and 6.

176Heather and Grass Burning (England) Regulations 2007, SI 2007/2003, reg 5.

177Common Agricultural Policy (Control and Enforcement, Cross-compliance, Scrutiny of Transactions and Appeals) Regulations 2014, SI 2014/3263, Sch 2, para 2. See Chapter 15 para 15.39 ff below.

178SI 2007/2003, reg 7.

179Or two areas within five metres of each other with a combined area of ten hectares or more.

180SI 2007/2003, reg 6(1)(a)–(c).

181Ibid, reg 8.

182The Waste Management Licensing Regulations 1994, SI 1994/1056, as amended by SI 1995/288, SI 1996/972 and SI 2005/1728.

183Formerly Council Directive 75/442/EEC (OJ 1975 L194/39) as amended by Council Directive 91/156/EEC (OJ 1991 L78/32) and Commission Decision 96/350/EC (OJ 1996 L 135/32). The current Framework Waste Directive is Council Directive 2008/98/EC. The Waste Framework Directive is now transposed directly into English law by the Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675 as amended.

184Case C-62/03.

185SI 2006/937.

186Ie from 15 May 2006 under the Waste Management (England and Wales) Regulations 2006, SI 2006/937, amending the Waste Management Licensing Regulations 1994.

187See para 14.25 ff above.

188Protecting Our Water Soil and Air: A Code of Good Agricultural Practice for farmers growers and land managers (2009, DEFRA). Discussed further below at para 14.99 ff, Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/268691/pb13558-cogap-131223.pdf.

189Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675, Sch 2, para 2, as amended.

190See Chapter 5, para 5.07 ff.

191Agriculture Act 1947, s 109.

192See also Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675, Sch 2, para 2, as amended. (‘Waste …means anything that is waste for the purposes of the Waste Framework Directive…’)

193ARCO Chemie Nederland Ltd v Minister van Volkshuivesting and EPON, Case C-418/97 [2003] Env LR 40.

194The ECJ had formerly held that consigning a material to a recovery operation should be indicative in all case that it was ‘waste’ within the directive: see Euro Tombesi, Case C-304/94 [1998] Env LR 59, Inter-Environnement Wallonie v Regione Wallone, Case C-126/96 [1998] Env LR 625. This approach had also been followed in the English courts: Mayer Parry Recycling Ltd v Environment Agency [1999] Env LR 489 (scrap metal that could be reused without being put through a recovery operation held not to be waste).

195[2002] Env LR 5.

196[2004] EWHC 17.

197See Art 7 of the European Convention of Human Rights and Fundamental Freedoms.

198Case C-416/02.

199As to which see above para 14.44 ff.

200Environmental Protection Act 1990, s 34(6). It is not necessary for harm to result from the breach for the offence to have been committed. The offence is punishable with an unlimited fine on conviction in the Crown Court, or a maximum £5,000 fine in the magistrates’ court.

201See the Environmental Protection (Duty of Care) Regulations 1991, SI 1991/2839.

202Made under Environmental Protection Act 1990, s 34(7).

203Manage Waste on Land: Guidance for Land Managers (Environment Agency 2014) available at: https://www.gov.uk/guidance/manage-waste-on-land-guidance-for-land-managers (last accessed 21 August 2015)

204Environmental Protection Act 1990, s 34(10).

205Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675, Sch 25, Part 3, para 2, as amended.

206The exemption is registered by the ‘establishment or undertaking’ carrying out the waste management activity covered by the exemption, not by the farmer individually.

207In each case the waste use authorised is categorised with a reference number ‘U’, and set out in a table in Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675, Sch 3, Part 3, as amended, With the relevant standard conditions applicable to the use authorised for each category of waste usage.

208Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675, Sch 3, Part 3.

209Schedule 3, Part 3 ibid, U10, with Conditions A,B,C.

210Schedule 3, Part 3 ibid, U10, with Condition A only.

211Schedule 3, Part 3, ibid, U13 ibid.

212Schedule 3, Part 3, ibid, U10 ibid.

213Schedule 3, Part 3, ibid, U15 ibid.

214Schedule 3, Part 3, ibid, U15 ibid.

215Schedule 3, Part 3, ibid, U10 ibid with condition A only.

216This requirement includes proving the necessary financial probity to ensure that the terms of the licence are carried out.

217See above para 14.92.

218SI 2005/894.

219Hazardous waste is defined by reg 6 of SI 2005/894 primarily as waste listed in the List of Wastes (England) Regulations 2005 (SI 2005/895). The Secretary of State has power, additionally, to classify waste as hazardous.

220For example, for the position in France, see Lorvellec, p.66–7 in Agrarian Land Law in the Western World (eds Brussaard & Grosmann, 1992).

221Chapter 12 above para 12.28 ff.

222See Town and Country Planning Act 1990, ss 336, 55(2)(e).

223SI 2015/596, Sch 2, Part 6 above Chapter 12 para 12.49 ff.

224(2009, DEFRA). Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/268691/pb13558-cogap-131223.pdf

225See Water Resources Act 1991, s 97.

226See Savage v Fairclough [2000] Env LR 183.

227See above para 14.58 ff.

228Above para 14.17 ff.

229See Ch 12 para 12.19 ff.

230SI 1989/1263. These implement Council Directive 86/278/EEC [1986] OJ L181/6 on the protection of the environment, and in particular of the soil, when sewage sludge is used in agriculture.

231For example lead, mercury, zinc and nickel.