Defra publishes new Statutory Guidance for farmers covering muck spreading but does it make any difference to enforcement and regulation?

Back in 2022, WildFish challenged the Guidance issued by the Secretary of State relating to the implementation of the Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018 (“Farming Rules for Water”).

We told Defra we considered their Guidance unlawful and we would challenge it in Court if they did not alter it.

We met with Defra and they backed down, WildFish winning some concessions.[1]

In June last year, another challenge was brought against the Guidance (not by WildFish), but the High Court ruled that the Environment Agency’s approach to enforcement against farmers for breaching the Farming Rules for Water was not unlawful R (oao River Action) v Environment Agency et al [2024] EWHC 1279 (Admin).

Central to the discussion in that case was the interpretation of Regulation 4 which relates to the application of organic manure and manufactured fertiliser to agricultural land, requiring that the spreading is planned and does not “exceed the needs of the soil and crop on that land” or “give rise to a significant risk of agricultural diffuse pollution” and “takes into account the weather conditions and forecasts for that land at the time of the application. . .”

. . .Which is pretty sensible, of course: farmers must surely manage their spreading and avoid the over-use of fertiliser when there is no capacity in the soil to avoid run-off diffuse pollution of rivers and streams.

The problem was that Defra’s Statutory Guidance dictated that the Agency should prioritise advice and guidance over enforcement action and there appeared to be a requirement in the Guidance for the Agency to let land managers off the hook, even if the spreading went  beyond “need”,  where it was unavoidable or it was “not reasonably practicable” to avoid the exceedance.

The claimant in that case argued that the Environment Agency (EA) was slavishly following the Guidance and avoiding obligations to enforce against errant farmers. However, Mr Justice Dove was not persuaded: it was open to the regulator to have a policy in relation to its enforcement. The regulator had a “discretion to exercise in respect of ensuring compliance in each case”.

Although the claimant’s case failed, the one reward for the campaigners was that the judge favoured the narrow interpretation of “need” (i.e. need of the crops when deciding to spread fertiliser). “Needs of the soil” meant at the time of the application, which was not the view of Defra and the National Farmers’ Union (NFU). Defra and the NFU argued that the words should be interpreted to mean that farmers could spread manure to meet the needs over the annual crop cycle or a crop rotation, despite the fact this would result in over-spreading and pollution.

Partly as a response to the judgment of the Court and the clarification of what is meant by “needs of the soil”, the Government has again updated its Guidance. Whilst it still favours “advice and guidance” over “taking enforcement action”, the updated Guidance (June 2025) does away with references to annual planning for crops and suggests that “the needs of the crop and soil and the risk of diffuse pollution will depend on individual circumstances. . .  In all cases, land managers must demonstrate that they are planning to take all appropriate reasonable precautions to help mitigate against the risk of diffuse agricultural pollution.”

There are some sensible additions to the new Guidance including the requirement for farmers to set out their plans in writing and the removal of the regulatory ‘carve-out’ for farmers where they were originally allowed to spread beyond need where it was “not reasonably practicable” to do otherwise. But the revisions also include the removal of closed seasons for fertiliser spreading which is surely a very bad idea.

One can see that the EA officers are going to have to work harder to decide whether a farmer complies. Once a regulator is required to make informed judgments about the state of the soil, the content of manure management plans and other specialised areas of regulation to determine compliance, it becomes less and less likely that enforcement action would ever succeed.

In other words, the new Guidance is full of loopholes which allow farmers off the hook when they spread manures and cause pollution.

The Guidance is really just another example of the product of a government department obsessed with undermining proper regulation with the aim of allowing businesses (here farms) to get away with bad practice, even if it harms the environment. It’s the business-first agenda.

List of references 

1. WildFish forces change to how Farming Rules for Water will be enforced to protect English rivers

By: Justin Neal

Solicitor