Ministerial designation of certain East Anglian rivers as Nitrate Vulnerable Zones for purpose of EC nitrate pollution directive – Whether designation lawful where unclear whether agricultural sources alone would have caused prescribed limit to be exceeded – Issue referred to European Court of Justice
By a decision made in May 1994 (the decision) the Secretary of State for the Environment and the Minister of Agriculture, Fisheries and Food (the ministers), purporting to apply article 3(1) of Council Directive 91/676 EEC (the directive), identified for purposes of consultation various lengths of river in named catchment areas as “nitrate vulnerable zones” (NVZs), namely ones which could be affected by nitrate pollution from agricultural sources unless further action under the directive was taken. Subsequently, and purporting to apply article 3(2) of the directive, the ministers designated 68 zones as NVZs by listing them in a Schedule to regulation 3(1) of the Protection of Water against Agricultural Pollution (England and Wales) Regulations (SI 1996 no 888). Both the decision and the regulations were challenged in judicial review proceedings brought by agricultural interests in so far as they had identified and designated certain lengths of the rivers Waveney, Blackwater and Chelmer and their tributaries.
The first ground of challenge was that the ministers had breached the directive in failing to identify the source of the nitrates complained of since there could be no “pollution” for the purpose of the directive unless the overstepping of the prescribed limit (50mg/l in at least 5% of samples) would have occurred regardless of nitrate escape from non-agricultural sources. Alternatively, it was argued that if the ministers’ interpretation of the directive was correct, namely that once the limit was passed it was enough to establish a “significant contribution from agricultural sources”, then the directive itself was invalid as contravening the “polluter pays” principle as embodied in general principles of community law. With the exception of the National Farmers Union, the applicants further argued that if the true interpretation of the directive was in doubt the court should refer the same for a preliminary ruling by the ECJ pursuant to article 177 of the EC Treaty.
Held The question was referred to the ECJ.
1. The definition of “pollution” contained in article 2(j) of the directive threw no light on the claim that discharges from agricultural sources should be the sole cause of hazards to human health etc nor on the respondents’ contention that the words “significant contribution” should be read into the definition. Nor could it be assumed that the ECJ would adopt a common lawyer’s approach to issues of causation.
2. Given a real doubt, the principle, as stated by Sir Thomas Bingham MR in R v International Stock Exchange of the United Kindgdom and the Republic of Ireland, ex parte Else [1993] QB 534 , was to refer the question in the interest of uniform interpretation throughout the community, a particularly important consideration should the applicant’s alternative argument fall for determination.
David Vaughan QC, Maurice Sheridan and Peter Cranfield (instructed by Barker Gotelee, of Ipswich) appeared for the applicants; Stephen Richards and Jonathan Turner (instructed by the Treasury Solicitor and the solicitor to the Ministry of Agriculture, Fisheries and Food) appeared for the respondents; Stuart Isaacs QC and Clive Lewis (instructed by the solicitor to the National Farmers Union) appeared for the intervener union.
