The Nitrate Pollution Prevention (Amendment) Regulations 2009

Citation and commencement

1.  These Regulations—

(a) may be cited as the Nitrate Pollution Prevention (Amendment) Regulations 2009; and

(b) come into force on 28th December 2009.

Amendments to the Nitrate Pollution Prevention Regulations 2008

2.  The Nitrate Pollution Prevention Regulations 2008(1) are amended in accordance with regulations 3 to 11.

Amendment of Part 1

3.—(1) Part 1 (Introduction) is amended as follows.

(2) For paragraph (2) of regulation 3 (coming into force), substitute—

“(2) Regulation 22(1) and Part 7 come into force on 1st January 2012, unless the holding is within an area marked as a NVZ deferred slurry storage area on the maps marked “Nitrate Vulnerable Zones (England 2009)”(2) and deposited at the offices of the Secretary of State for Environment, Food and Rural Affairs, Nobel House, 17 Smith Square, London SW1P 3JR, where these provisions come into force on 1st January 2013.”.

(3) For regulation 6 (interpretation), substitute—

“Interpretation

6.   In these Regulations—

“Agency” means the Environment Agency;

“agricultural area” means any agricultural land used for agricultural purposes;

“agriculture” has the same meaning as in section 109(3) of the Agriculture Act 1947;

“crop with high nitrogen demand” includes, but not limited to, grass, potatoes, sugar beet, maize, wheat, oilseed rape, barley, brassicas, rye and triticale;

“deemed derogation” means a derogation granted under regulation 13B;

“derogated holding” means a holding over which a derogation has been granted;

“derogation” means a derogation from the limit of the total amount of nitrogen in livestock manure that can be applied to land each year as provided for in paragraph 2(b) of Annex III of Council Directive 91/676/EEC granted by the Commission Decision 2009/431/EEC(3) and deemed or granted by the Agency or, on appeal, the derogation application appeals panel under regulation 13C;

“derogation application” means an application for a derogation;

“eutrophic” means water that is enriched by nitrogen compounds, causing an accelerated growth of algae and higher forms of plant life that produces an undesirable disturbance to the balance of organisms present in the water and to the quality of the water concerned;

“fertilisation plan” means a plan prepared under regulation 14(1)(c) or other similar plans required under Schedule 4;

“grass” means—

(a)

permanent grassland or temporary grassland (temporary means for less than four years);

(b)

existing between the sowing and ploughing the grass; and

(c)

including crops under-sown with grass,

but does not include grassland with 50% or more clover;

“grazing livestock” means any animal specified in Table 1 in Schedule 1;

“holding” means all the land located within a nitrate vulnerable zone and its associated buildings that are at the disposal of the occupier and which are used for the growing of crops in soil or rearing of livestock for agricultural purposes;

“land that has a low run-off risk” means land that—

(a)

has an average slope less than 3º;

(b)

does not have land drains (other than a sealed impermeable pipe); and

(c)

is at least 50 metres from a watercourse or conduit leading to a watercourse;

“livestock” means any animal (including poultry) specified in Schedule 1;

“manufactured nitrogen fertiliser” means any nitrogen fertiliser (other than organic manure) manufactured by an industrial process;

“manufactured phosphate fertiliser” means any phosphate fertiliser (other than organic manure) manufactured by an industrial process;

“nitrogen fertiliser” means any substance containing one or more nitrogen compounds used on land to enhance growth of vegetation and includes organic manure;

“non-grazing livestock” means any animal specified in Table 2 in Schedule 1;

“organic manure” means any nitrogen fertiliser or phosphate fertiliser derived from animal, plant or human sources and includes livestock manure;

“phosphate fertiliser” means any substance containing one or more phosphorus compounds used on land to enhance growth of vegetation and includes organic manure;

“poultry” means poultry specified in Schedule 1;

“sandy soil” means any soil over sandstone, and any other soil where—

(a)

in the layer up to 40 cm deep, there are—

(i)

more than 50 per cent by weight of particles from 0.06 to 2 mm in diameter,

(ii)

less than 18 per cent by weight of particles less than 0.02 mm diameter, and

(iii)

less than 5 per cent by weight of organic carbon; and

(b)

in the layer from 40 to 80 cm deep, there are—

(i)

more than 70 per cent by weight of particles from 0.06 to 2mm in diameter,

(ii)

less than 15 per cent by weight of particles less than 0.02 mm diameter, and

(iii)

less than 5 per cent by weight of organic carbon;

“shallow soil” is soil that is less than 40 cm deep;

“slurry” means excreta produced by livestock (other than poultry) while in a yard or building (including any bedding, rainwater or washings mixed with it) that has a consistency that allows it to be pumped or discharged by gravity (in the case of excreta separated into its liquid and solid fractions, the slurry is the liquid fraction);

“spreading” includes application to the surface of the land, injection into the land or mixing with the surface layers of the land but does not include the direct deposit of excreta on to land by animals.”.

Amendment of Part 3

4.—(1) Part 3 (Limiting the application of organic manure) is amended as follows.

(2) At the beginning of paragraph (1) of regulation 12 (application of livestock manure – total nitrogen limit for the whole holding), insert “Except where the occupier has been granted a derogation,”.

Insertion of new Part 3A

5.  After Part 3 (Limiting the application of organic manure), insert—

“PART 3A Derogation

Application for a derogation

13A.— (1) An occupier of any holding or any person on the occupier’s behalf (“the applicant”) may apply to the Agency for a derogation where 80% or more of the agricultural area is sown with grass.

(2) A derogation application must be submitted between the following dates—

(a) 1st January 2010 and 31st March 2010 for a 2010 derogation;

(b) in relation to an application for any year after 2010, 1st October and 31st December in the calendar year preceding that in respect of which the application is made.

(3) The Secretary of State must publish the manner and form in which the application must be made.

(4) The Agency must grant or refuse a derogation application as soon as practicable and notify the applicant of the decision in writing and, where the Agency refuses a derogation application, must give reasons for the refusal at the same time.

(5) The Agency must refuse a derogation application where it considers the granting of the derogation would have an adverse effect on the integrity of—

(a) a European site; or

(b) a European offshore marine site,

where those sites have been subject to an appropriate assessment under regulation 48 of the Conservation (Natural Habitats, & c.) Regulations 1994(4).

(6) Where the Agency has refused to grant the derogation application, the applicant may appeal in accordance with the procedure set out in regulation 13C.

(7) Where the Agency has granted the derogation application, the holding to which the derogation applies shall be designated by the Agency as a derogated holding for the calendar year in respect of which the application was made.

(8) The occupier must keep a record of the derogation application and decision.

(9) In this regulation—

(a) “European offshore marine site” means a European offshore marine site within the meaning of regulation 15 (meaning of European offshore marine site) of the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007(5); and

(b) “European site” means a European site within the meaning of regulation 10 (meaning of European site) of the Conservation (Natural Habitats, &c.) Regulations 1994.

Deemed derogation

13B.— (1) Where 70% or more of a holding’s agricultural area is sown with grass during the 2009 calendar year the holding is deemed to be a derogated holding for that calendar year.

(2) An occupier of a holding deemed to be a derogated holding under paragraph (1) who has applied livestock manure to the holding above the 170kg limit in Regulation 12(1) must record the percentage of the holding’s agricultural area sown with grass during 2009.

Appeal against refusal of a derogation application

13C.— (1) Where the Agency has refused a derogation application, the applicant may by notice appeal the decision to an independent panel appointed by the Secretary of State for the purpose of these Regulations (“the derogation application appeals panel”).

(2) An appeal against a refusal of a derogation application must be submitted within 30 days beginning on the day after the date of the refusal.

(3) The Secretary of State must publish the manner and form in which an appeal must be made.

Proceedings of the derogation application appeals panel

13D.— (1) The derogation application appeals panel must consist of an odd number of persons, not being less than 3 persons, and make its decision by a simple majority.

(2) The derogation application appeals panel must consider the appeal and determine whether or not to allow the appeal.

(3) The derogation application appeals panel must arrive at its decision based on documentation submitted to it by the appellant and the Agency, unless it decides that it needs additional information to form a judgement, in which case it may—

(a) request the appellant, or the Agency, to provide additional material; and

(b) in exceptional circumstances may convene an oral hearing.

(4) At an oral hearing the appellant and the Agency have the right to appear.

(5) All parties must bear their own costs.

Effect of derogation application appeals panel findings

13E.— (1) If the derogation application appeals panel allows the appeal, the holding to which the derogation application applies must be designated by the Agency as a derogated holding for that calendar year.

(2) The derogation application appeals panel must—

(a) notify the Agency, the applicant and the Secretary of State, as soon as reasonably practicable, of its findings; and

(b) where the appeal is refused, give reasons for the refusal.

Derogated holdings

13F.   Schedule 4 has effect in relation to derogated holdings.”.

Amendment of Part 4

6.—(1) Part 4 (Crop requirements) is amended as follows.

(2) For paragraph (3) of regulation 15 (additional information to be recorded during the year), substitute—

“(3) Before spreading manufactured nitrogen fertiliser, the occupier must record—

(a) the amount required; and

(b) the planned date for spreading (month).”.

(3) In regulation 16 (total nitrogen spread on a holding)—

(a) for paragraph (a), substitute—

“(a) nitrogen from manufactured nitrogen fertiliser, and”;

(b) for paragraph (b), substitute—

“(b) nitrogen available for crop uptake from livestock manure in the growing season in which it is spread, calculated in accordance with regulation 17,”;

(c) after “spread on the following crops” omit “, calculated in accordance with regulation 17,”; and

(d) for table footnote (e), substitute—

“(e) This is inclusive of any nitrogen that is applied as an exemption to the closed period for manufactured nitrogen fertiliser. The permitted amount may be increased by up to 30 kg per hectare for every half tonne that expected yield exceeds the standard yield.”.

Amendment of Part 5

7.—(1) Part 5 (Controlling the spreading of nitrogen fertiliser) is amended as follows.

(2) For regulation 20 (spreading manufactured fertiliser near surface water), substitute—

“Spreading manufactured nitrogen fertiliser near surface water

20.   No person may spread manufactured nitrogen fertiliser within 2 metres of surface water.”.

(3) For regulation 22 (controlling how nitrogen fertiliser is spread), substitute—

“Controlling how nitrogen fertiliser is spread

22.— (1) Subject to paragraph (2), any person spreading slurry must use spreading equipment with a spreading trajectory less than 4 metres from the ground.

(2) Spreading equipment with a spreading trajectory of more than 4 metres from the ground can be used where such equipment can achieve an average slurry application rate of not more than 2 millimetres per hour when it is operating continuously.

(3) Any person spreading nitrogen fertiliser must do so in as accurate manner as possible.”.

Amendment of Part 6

8.—(1) Part 6 (Closed periods for spreading nitrogen fertiliser) is amended as follows.

(2) For paragraph (a) of regulation 27 (exemptions for organic holdings), substitute—

“(a) crops specified in the table in Schedule 3 (permitted crops for the closed period), or”.

Amendment of Part 8

9.  In paragraph (2) of regulation 42 (records of spreading nitrogen fertiliser) of Part 8 (Calculations and records), after “manufactured” insert “nitrogen”.

Amendment to Schedules

10.  For Schedules 1 to 3, substitute the contents of the Schedule to these Regulations.

Amendment of the Conservation (Natural Habitats, & c.) Regulations 1994

11.—(1) The Conservation (Natural Habitats & c.) Regulations 1994(6) are amended as follows.

(2) After regulation 84C (marine works), insert—

“Derogations under the Nitrate Pollution Prevention Regulations 2008

84D.— (1) Regulations 48 (assessment of implications for European site) and 49 (considerations of overriding public interest) apply in relation to the granting of a derogation under Part 3A of the Nitrate Pollution Prevention Regulations 2008(7).

(2) Where regulations 48 and 49 apply, the competent authority may, if they consider any adverse effects of the plan or project on the integrity of a European site or European offshore marine site would be avoided if the derogation were subject to conditions, grant the derogation, subject to those conditions.”.

Huw Irranca-Davies

Parliamentary Under Secretary of State

Department for Environment, Food and Rural Affairs

2nd December 2009