A decision to financially penalise a former president of the Ulster Farmers’ Union (UFU) for polluting a river was unlawful, a High Court judge ruled today.
Mr Justice Maguire held that the Department of Agriculture failed to provide evidence for a conclusion that Ian Marshall intentionally breached regulations at his farm near Markethill.
He said: “The court is satisfied that the decision maker’s decision, on balance, cannot stand.”
Mr Marshall issued proceedings against the Department after his EU subsidy, worth tens of thousands of pounds, was cut by 55 per cent under cross-compliance rules.
The penalty was imposed for silage effluent from his farm allegedly polluting a waterway leading to the nearby River Mowhan between December 2011 and January 2012.
Inspections were carried out following an anonymous tip-off.
During one visit the waterway appeared “grossly” polluted, with sewage fungus extending for more than a kilometre downstream of the farm, the court heard.
Inspectors formed the view that the mismanagement of a diverter device used with an inflow pipe was responsible for its contents being discharged through storm drains to the river.
In 2015 the head of an agency responsible for single farm payments decided to make the deduction.
A higher penalty was imposed because the pollution was deemed to be on purpose.
Mr Marshall insisted it was never intentional and said inspectors were unable to determine the source of pollution in his farmyard.
His lawyers did not dispute the breaches were negligent.
But they argued that the farmer had taken all appropriate steps and complied with requests following visits.
There was no evidence that he knew about the diverter being mis-set, counsel contended.
A barrister for the Department responded by claiming Mr Marshall was notified about the continued pollution but failed to deal with it.
However, Mr Justice Maguire identified a series of reasons why the decision was flawed.
He held that it was up to the Department to prove intentionality on the balance of probability.
The judge also identified a lack of precise evidence for the head of the payment agency’s conclusion.
“In other words, he failed to set out the respects in which he had concluded that the applicant had knowingly breached the Statutory Management Requirement in question,” he said.
“The court will make a declaration that the decision of the decision maker is unlawful as being the result of material misdirection.”
Commenting on the decision, UFU chief executive Wesley Aston said that while this was a welcome decision for the farmer involved, the UFU’s role in seeking a judicial review had been to protect the wider industry from harsh treatment for minor mistakes.
“It is not about pollution or indeed the scale of the incident,” said Mr Aston. “We accept there is no acceptable level of pollution. The case is about whether NIEA and DARD were right to effectively ignore the views of the independent external appeal panel which considered this was a negligent rather than intentional breach and had recommended accordingly.”
Mr Aston added: In this particular case, now that the precedent around proving intent has been established we are pleased that not only will ‘intent’ have to be proven more robustly in future breaches of cross compliance but also that all similar historic cases may now have to be re-examined.”