Farmers who improve their land with materials which are as innocuous as topsoil, risk prosecution and significant financial penalties.
Solicitor Aled Owen has represented a number of farmers prosecuted in Wales by Natural Resources Wales and its predecessor, Environment Agency Wales.
The prosecutions have centred on attempts by farmers and landowners to improve wet, rocky or unproductive soil by adding hardcore, subsoil or topsoil.
Mr Owen said a change of emphasis by the regulator in the past few years has made those who work the land vulnerable to possible prosecution. Central to this is what regulators might class as waste could be considered productive material by a farmer.
“Case law is changing, but effectively the position is that unless the farmer has sought exemptions, permits or planning applications, the only way to establish what waste or material has been deposited is for it to be considered in the court,” said Mr Owen, of JCP Solicitors.
“The effect of this is that Natural Resources Wales will invariably call material such as subsoil waste and point out there may be some errant material within it such as wood or small amounts of plastics.”
“The claims can be for several hundred thousand pounds, and in some cases for several million.”
Aled Owen, JCP Solicitors
The issue is compounded further when prosecutors class land improvement as landfill disposal and make proceeds of crime applications against the farmer. “The claims can be for several hundred thousand pounds, and in some cases for several million,” Mr Owen added.
This happened to Toby Parker, who has a smallholding in Carmarthenshire and also ran an agricultural supply business.
He sought to improve a 2.4ha waterlogged field and was granted permission by Carmarthenshire County Council to raise the level of part of the field. He used hardcore and also 17,000t of soil before reseeding the field.
But during a three-year court case brought by the then Environment Agency Wales, Mr Parker was accused under the Proceeds of Crime Act of making several million pounds of financial gain.
Mr Parker was found not guilty but the case cost him £100,000 in legal fees and he lost his business.
Mr Owen, who represented Mr Parker, said the nature of cases like these damaged a person’s reputation in agricultural communities and the implications were long term.
He warned that cases similar to Mr Parker’s were increasing year on year. “There is a sense of relief if the landowner avoids a criminal conviction but still he is straddled with large bills and costs which he cannot recover easily,’’ said Mr Owen.
He advises landowners to seek advice early, communicate with the depositor on the material and to put systems in place to supervise any agricultural improvement until it is completed.