Farmers’ land court can be a source of future guidance

In addition to dealing with agricultural tenancy and crofting cases, the Scottish Land Court is also the appeal court in relation to decisions made by various government bodies relating to farmers.

Two recent cases in the court have dealt with appeals against fixed monetary penalty notices imposed on farmers by the Scottish Environment Protection Agency (Sepa). Both appeals were unsuccessful, but the decisions are helpful in providing guidance to farmers who may wish to lodge appeals against such penalties.

The first case involved a farmer on Orkney who was given a fixed monetary penalty for spreading soil on his own land.

The penalty was imposed because the spreading of soil was regarded by Sepa as the carrying out of building or engineering works in inland water areas which was a controlled activity in terms of the Water Environment (Controlled Activities) (Scotland) Regulations 2001.

Such activity needs authorisation from Sepa before it is carried out.

The court dismissed the appeal because the farmer admitted that he had carried out the work but did not admit or deny that what he was doing was a controlled activity in terms of the regulations and the appeal made no attempt at all to engage with the regulations and their application to his situation. As a result, the court found that the grounds of appeal were wholly inadequate and the appeal was dismissed.

The other case was an appeal against a fixed monetary penalty of £600

imposed by Sepa in respect of an alleged breach of the Environmental Protection Act 1990 being the alleged disposal of controlled waste by burning on land without the authority of a waste management licence.

The land court pointed out that in order to succeed in an appeal the farmer would have to be able to demonstrate that Sepa had made a mistake in the application of the law.

Alternatively, the farmer would have to argue that there was an insufficiency

of evidence to support Sepa’s conclusion that on a balance of probabilities the offence took place. However, the appeal did not make an argument on either ground. The farmer argued that the offence had not taken place and although certain burning operations had happened, they were not of controlled waste.

The problem from the farmer’s point of view, however, was that the Sepa document imposing the fine summarised the

evidence on which Sepa were proceeding.

Three witnesses said that the farmer had placed controlled waste in a hole on the farm and Sepa officers carried out an inspection and saw the controlled waste in the hole and specifically warned the farmer that it would be an offence to burn the waste.

On a subsequent visit it was discovered that the hole had been covered over and there were signs of burning having taken place in the area where the hole

had been. The court was satisfied that the evidence was sufficient to satisfy the required standard of proof and that Sepa were entitled to find that the applicant had committed the offence complained of.

In the court’s view the grounds of appeal disclosed no basis upon which the appeal could realistically be expected to succeed and the appeal was refused.

It’s clear from the land court’s decision in each case that if a farmer wants to appeal against a fixed

monetary penalty imposed by Sepa, they will have to set out reasoned arguments in their appeal about why Sepa have made a mistake in the law that was being applied or make a challenge to the facts that Sepa had relied upon.

Without that level of detail being set out in the appeal it is very unlikely to be successful.

MAKING A CALL: The Scottish Land Court has dealt with two recent cases relating to fixed penalties imposed upon farmers.