The Nitrate Sensitive Areas (Designation) Order 1990

Made: 26th April 1990

Laid before Parliament: 11th May 1990

Coming into force: 1st June 1990

Now, therefore, the Minister of Agriculture, Fisheries and Food and the Secretary of State for the Environment, acting jointly in exercise of the powers conferred on them by section 112 of the said Act, and of all other powers enabling them in that behalf, with the consent of the Treasury, hereby make the following Order:–

Title, commencement and extent

1

• (1) This Order may be cited as the Nitrate Sensitive Areas (Designation) Order 1990 and shall come into force on 1st June 1990.

• (2) This Order shall apply to England only.

Interpretation

2

• (1) In this Order, unless the context otherwise requires:

• “agreement” means an agreement entered into by the Minister under section 112(2) of the Water Act 1989 as regards agricultural land in an area designated by article 3;

• “Agricultural Land Tribunal” means an Agricultural Land Tribunal established under Part V of the Agriculture Act 1947[^f00002];

• “arable land” means land used for the production of any crop other than grass;

• “autumn sown cereals” means cereals normally sown between 31st July in one year and 1st January in the following year;

• “basic scheme agreement” means an agreement whereby a farmer agrees to comply with the obligations set out in Schedule 1;

• “controlled waters” means the waters referred to in section 103(1) of the Water Act 1989;

• “cover crop” means a crop sown primarily in order to take up nitrogen from the soil in autumn or winter;

• “economic optimum” means the amount of inorganic nitrogen fertiliser applied in any year, such that if extra inorganic nitrogen fertiliser were applied in that year, having regard to the crop in question and the characteristics of the land on which it was planted, the cost of applying that fertiliser would be greater than the extra value of the additional yield of the crop produced;

• “the farmer” means a person who has an interest in agricultural land in an area designated by article 3 and who has entered into an agreement with the Minister;

• “Farm Woodland Scheme” means the Farm Woodland Scheme 1988[^f00003];

• “forage crop” means a crop, other than grass, sown in July or August to be cut or grazed in the following autumn or winter;

• “grassland” means land on which the vegetation consists predominantly of grass species;

• “holding” means all the land farmed as a unit by or on behalf of a farmer;

• “inorganic nitrogen fertiliser” means material, containing nitrogen, the main function of which is to provide plant food, and is in the form of inorganic salts obtained by extraction, physical industrial processes, chemical industrial processes, or a combination of any or all of these, and includes calcium cyanamide, and urea and its condensation products;

• “the Minister” means the Minister of Agriculture, Fisheries and Food;

• “organic nitrogen fertiliser” means animal manure, sewage sludge or any other organic materials containing nitrogen, but excluding calcium cyanamide, and urea and its condensation products;

• “pig place” means the facilities needed to house one fattening pig, save that one pig with progeny over 4 weeks old shall be taken to need 6.5 pig places and one pig with weaners up to 4 weeks old shall be taken to need 1.4 pig places;

• “poultry place” means the facilities needed to house one chicken (layers), one duck, or two chickens (broilers);

• “premium scheme agreement” means an agreement whereby a farmer agrees to comply with the obligations set out in Schedule 2;

• “slurry” means animal manure with a dry matter content by weight of less than 15% at any time.

• (2) In this Order–

• (a) any reference to a numbered article or Schedule shall be construed as a reference to the article or Schedule so numbered in this Order;

• (b) any reference in an article or a Schedule to a numbered paragraph shall be construed as a reference to the paragraph so numbered in that article or Schedule; and

• (c) any reference in a paragraph to a numbered or lettered subparagraph shall be construed as a reference to the subparagraph so numbered or lettered in that paragraph.

Designation of Nitrate Sensitive Areas

3

There are hereby designated as nitrate sensitive areas, referred to in this Order by the names specified in Column 1 of Schedule 3, each of the areas which is shown coloured pink on the map bearing the appropriate number listed in Column 2 of that Schedule opposite each name, each such map being dated 24th April 1990 signed and sealed by the Minister and the Secretary of State for the Environment and deposited at the offices of the Ministry of Agriculture, Fisheries and Food, Nobel House, 17 Smith Square, London, SW1P 3HX.

Applications

4

• (1) An application to enter into an agreement shall be made in the form prescribed by the Minister.

• (2) An application by a producer of pigs or poultry which are permanently housed shall be accompanied by a plan showing how the applicant proposes, in order to comply with the obligations specified in Schedule 1 and otherwise avoid the entry of nitrate into controlled waters, to store, handle, transport and dispose of slurry or poultry manure, and to spread it on his own or any other land.

• (3) An application to enter into an agreement in 1990 shall be made before 1st August 1990.

• (4) An application to enter into an agreement in 1991 shall be made before 1st June 1991.

• (5) A farmer who enters into a basic scheme agreement in 1990 may, before 1st June 1991, elect to enter into a premium scheme agreement.

• (6) The Minister shall not enter into an agreement in respect of an application made after 31st May 1991.

Conditions of entry into an agreement

5

• (1) Subject to paragraphs (3), (4) and (6) the Minister shall not enter into a basic scheme agreement except in respect of all the land in a nitrate sensitive area occupied by a farmer, or on his behalf, for agricultural purposes.

• (2) The Minister shall not enter into a premium scheme agreement in respect of any land unless that land is the subject of a basic scheme agreement and has been arable land continuously since 31st July 1989.

• (3) The Minister may enter into an agreement with a landlord and his tenant notwithstanding the fact that the land is not occupied by the landlord or on his behalf for agricultural purposes.

• (4) The Minister may enter into an agreement with a farmer in respect of land in a nitrate sensitive area–

• (a) of which the farmer has the freehold interest; or

• (b) which the farmer holds under a tenancy from a landlord who has given his consent in writing to the making of an agreement,

although that farmer has other land in that nitrate sensitive area which he holds under a tenancy from a landlord who has not given his consent in writing to the making of an agreement.

• (5) The Minister shall not enter into a premium scheme agreement in respect of a strip of land unless such strip is at least 15 metres wide.

• (6) The Minister may refuse to enter into an agreement if he is satisfied that the farmer will be unable to comply with such agreement throughout the whole of its duration but he may enter into an agreement in respect of that part of the farmer’s land in a nitrate sensitive area on which the farmer will be able to comply with such agreement throughout the whole of its duration.

• (7) A farmer who enters into a premium scheme agreement and agrees to comply with the obligations listed in Option D in Schedule 2 but whose application to enter the Farm Woodland Scheme 1988 is rejected shall, on receipt of written notice of such rejection, notify the Minister with which of the Options A, B or C in that Schedule he will instead comply, and he shall receive payments in respect of the Option so notified in respect of the period of the agreement.

• (8) The Minister may refuse to enter into an agreement if he is satisfied that any payment under this Order would duplicate any assistance previously given or to be given out of money provided by Parliament or by the European Economic Community.

Monitoring of compliance with agreement

6

An agreement shall contain a provision for the Minister and his servants or agents, where necessary in order to monitor compliance with that agreement or to assess the effectiveness of preventing the entry of nitrate into controlled waters of the measures contained within it–

• (a) to enter upon any land which is the subject of such agreement;

• (b) to take samples from the land;

• (c) to install equipment on the land; and

• (d) to examine all records kept in compliance with the said agreement.

Payments

7

• (1) An agreement shall provide that the Minister shall make payments, in accordance with Schedule 4 in respect of land which is the subject of that agreement, following receipt of a claim by the farmer.

• (2) The rates of payment specified in Schedule 4 above shall be reviewed by the Minister in 1993.

Recovery of Payments

8

• (1) An agreement shall provide that where the farmer fails without reasonable excuse to comply with any of its provisions the Minister may:

• (a) by notice in writing terminate the agreement and thereafter withhold the whole or any part of any payment payable to the farmer, and recover the whole or any part of any payment already made to him;

• (b) withhold the whole or any part of any payment payable to the farmer in respect of the year in which he failed to comply and recover the whole or any part of any payment made to him.

• (2) Subject to paragraph (3), any question arising under an agreement as to whether the agreement has been complied with shall be determined by the arbitration of a single arbitrator, to be agreed between the parties or, in default of agreement, to be appointed by the President of the Royal Institution of Chartered Surveyors, in accordance with the provisions of the Arbitration Acts 1950–1979.

• (3) Any dispute as to the economic optimum shall be determined by a person appointed by agreement between the parties or, in the absence of such agreement, by a person appointed by the Chairman of the Regional Panel constituted by the Minister for the area in which the land is situated.

9

• (1) Where during the period of an agreement there is a change of occupation of the whole or any part of the land which is the subject of such agreement the Minister may withhold the whole or any part of any payment due to the farmer who entered into that agreement and may recover from him or his personal representatives the whole or any part of any payments of aid already paid to him.

• (2) Paragraph (1) above shall not apply where:

• (a) the new occupier is a person deriving title from or under the farmer who entered into the agreement; or

• (b) the change of occupation is the result of:

• (i) compulsory purchase of the whole or part of the holding; or

• (ii) the termination of a tenancy following the operation of a notice to quit to which the Agricultural Land Tribunal has consented under section 26(1) of the Agricultural Holdings Act 1986[^f00004] having been satisfied as to any of the matters specified in section 27(3)(b) to (f) of that Act or the termination of a tenancy following the service of a notice to quit stating that the circumstances in Case A, B, D, G or H of Schedule 3 to that Act apply.

SCHEDULE 1 — OBLIGATIONS TO BE INCLUDED IN A BASIC SCHEME AGREEMENT

As regards any land which is the subject of a basic scheme agreement:

1 The farmer shall not apply more than 120 kilograms per hectare of inorganic nitrogen fertiliser to a crop in a single application.

2 a In the case of the following crops the farmer shall not apply to any crop more inorganic nitrogen fertiliser than is specified:– i wheat and barley sown between 31st July in one year and 1st January in the following year: 25 kilograms per hectare of inorganic nitrogen fertiliser below the economic optimum; ii oilseed rape sown between 31st July in one year and 1st January in the following year: 50 kilograms per hectare of inorganic nitrogen fertiliser below the economic optimum; and iii forage crop sown between 30th June and 1st September in any year: 25 kilograms per hectare of inorganic nitrogen fertiliser below the economic optimum. b In all other cases the farmer shall not apply to any crop more inorganic nitrogen fertiliser than the economic optimum.

3 The farmer shall not apply any inorganic nitrogen fertiliser to grassland between 31st August in one year and 1st February in the following year, or to any land which is not grassland, between 15th August in one year and 15th February in the following year.

4 The farmer shall not in any period of 12 months apply organic nitrogen fertiliser in excess of that which contains 175 kilograms of nitrogen per hectare.

5 The farmer shall store any slurry or liquid sewage sludge in a way which will avoid the entry of nitrate into controlled waters.

6 The farmer shall not apply slurry, poultry manure, or liquid sewage sludge to grassland between 31st August and 1st November in any year, or to land which is not grassland, between 30th June and 1st November in any year.

7 The farmer shall not cultivate any grassland between 30th September in one year and 1st February in the following year. Where slurry, poultry manure or liquid sewage sludge is applied to grassland between 30th June and 1st September in any year he shall not cultivate the grassland nor kill off the grass for a period of 4 weeks following the application.

8 The farmer shall ensure that where in any year grassland is cultivated or re-seeded, the following crop is sown as soon as soil conditions allow, and in any event not later than 30th September of that year.

9 Where a crop is harvested before 15th October in any year– a the farmer shall drill autumn sown cereals by 15th October in that year; or b if it is not intended to sow the next crop before 1st January in the following year, the farmer shall sow a cover crop as soon after harvesting as soil conditions allow.

10 Before sowing a cover crop, the farmer shall obtain the approval of the Minister to the cover crop which he intends to sow.

11 The farmer shall not apply any inorganic nitrogen fertiliser prior to the establishment of a cover crop or to the cover crop once sown.

12 The farmer shall not remove any cover crop whether by mechanical cultivation, herbicides, burning or by grazing– a before 1st February in the year after its establishment if the land is in the Boughton NSA, Wildmoor NSA, Wellings NSA or Tom Hill NSA; b before 1st December in the year in which it was established if the land is in the Sleaford NSA, Branston Booths NSA, Ogbourne St George NSA, Old Chalford NSA, Egford NSA or Kilham NSA– unless the next crop is sown within 4 weeks of the removal of the cover crop.

13 If the farmer uses an irrigation system he shall use a scheduling system which optimises water use and avoids excessive applications of water.

14 Unless the organic nitrogen fertiliser is produced within the nitrate sensitive area in which the farmer’s land is situated he shall not use in any period of 12 months commencing on 1st August organic nitrogen fertiliser which would increase by more than 25% the total amount of nitrogen in organic nitrogen fertiliser being applied in the 12 month period commencing on 1st August 1989.

15 The farmer shall not remove hedgerows or woodland unless he plants with hedgerows or woodland at least an equivalent area of land to that on which the hedgerows or woodland were situated.

16 The farmer shall not convert grassland to arable land unless that grassland is a grass ley in arable rotation.

17 The farmer shall keep records of the amount of all applications of organic and inorganic nitrogen fertiliser; the dates and times when such fertiliser was applied; and the areas of the land and the crop to which application was made.

18 The farmer shall, if he is a producer of pigs or poultry which are permanently housed, adhere to the plan referred to in article 4(2).

SCHEDULE 2 — OBLIGATIONS TO BE INCLUDED IN A PREMIUM SCHEME AGREEMENT

As regards any land which is the subject of a premium scheme agreement:–

1 The farmer shall cease arable production and establish a grassland sward by 1st October which next occurs after entering into the said agreement.

2 The farmer shall increase the overall area of grassland on all his land within the nitrate sensitive area to at least the area of grassland as at 31st July 1989 plus the amount of arable land converted to grassland or grassland with woodland and shall maintain an equivalent area as grassland or grassland with woodland for the period of the agreement.

3 The farmer shall maintain– a as grassland for the period of the agreement any arable land converted to grassland since 31st July 1989, or b as grassland with woodland for the period of the agreement any arable land converted to grassland with woodland since 31st July 1989.

4 The farmer shall not cultivate the grassland except to re-seed it.

5 The farmer shall not re-seed the grassland without the approval in writing of the Minister.

6 The farmer shall use only a seeds mixture which does not include legumes.

7 The farmer shall comply with the obligations listed in any one of the Options, headed Option A, Option B, Option C or Option D, set out below.

• Option A – conversion of arable land to grassland, unfertilised and ungrazed The farmer shall not apply any organic nitrogen fertiliser or inorganic nitrogen fertiliser to the grassland or land planted with grass seed. The farmer shall cut the grass at least twice each year and remove the cuttings from the land. The farmer shall not irrigate the grassland. The farmer shall not allow the grass to be grazed.

• Option B – conversion of arable land to grassland with grazing The farmer shall not apply any organic nitrogen fertiliser or inorganic nitrogen fertiliser to the grassland or land planted with grass seed. The farmer shall not allow overgrazing of the grassland. If the farmer cuts the grass, he shall remove the cuttings from the land. The farmer shall not irrigate the grassland. The farmer shall not increase the number of livestock on the land above that which may be fed from the grass alone.

• Option C – conversion of arable land to grassland wih grazing and limited application of nitrogen fertiliser The farmer shall not apply more than 150 kilograms per hectare of organic nitrogen fertiliser or inorganic nitrogen fertiliser in any period of 12 months. The farmer shall not allow overgrazing of the grassland. If the farmer cuts the grass, he shall remove the cuttings from the land. The farmer shall not irrigate the grassland. The farmer shall not increase the number of livestock on the land above that which may be fed from the grass alone.

• Option D – conversion of arable land to grassland with woodland The farmer shall not apply any organic nitrogen fertiliser or inorganic nitrogen fertiliser to the grassland or land planted with grass seed. The farmer shall not allow the grass to be grazed. If the farmer cuts the grass he shall remove the cuttings from the land. The farmer shall plant woodland complying with the conditions of the Farm Woodland Scheme by 1st April which next occurs after entering into the said agreement. When planting woodland– the farmer shall plant at least 50 per cent of that woodland with broadleafed species of tree; and any conifers planted shall be interspersed with broadleafed species of tree. The farmer shall not plant alder trees. When planting trees, the farmer shall not remove an area of grass of more than one square metre per tree.

SCHEDULE 3 — DESIGNATED AREAS

SCHEDULE 4 — RATES OF PAYMENT

Basic Scheme

The payment for any land not used for the permanent housing of pigs or poultry in the nitrate sensitive area named in Column 1 below which is the subject of a basic scheme agreement shall be at the rate per annum specified in Column 2 below opposite that name for each hectare of the land.

Payments for producers of pigs or poultry which are permanently housed

1

Subject to paragraph 3 the payment per pig place for a producer whose pigs are permanently housed and who, in order to comply with an agreement, installed storage facilities for slurry produced by his pigs shall be £0.70 per annum for each month of storage capacity available for that slurry in excess of 4 months of storage capacity.

2

Subject to paragraph 3 the payment per pig place or per 10 poultry places for a producer whose pigs or poultry are permanently housed, where pig or poultry manure has to be conveyed further from the housing for the pigs or poultry than hitherto, in order to comply with an agreement in relation to the storage, spreading or disposal of such manure, shall be at the rate per annum set out below for every additional mile from that housing that the manure has to be conveyed–

3

Payments under paragraphs 1 and 2 shall be made in respect of the number of pig places or poultry places on the land–

• (a) on 3rd April 1990; or

• (b) if a lower number, the number on 1st August 1990 where the farmer entered into an agreement in 1990, or 1st June 1991 where he entered into an agreement in 1991; or

• (c) if between 3rd April 1990 and 1st August 1990 or between 3rd April 1990 and 1st June 1991 as appropriate an average of less than 85 per cent of the pig places or poultry places were occupied by pigs or poultry, the average number of pig places or poultry places occupied by pigs or poultry during that period.

Premium Scheme

• Option A – conversion of arable land to grassland, unfertilised and ungrazed The payment for any land in the nitrate sensitive area named in Column 1 below which is the subject of a premium scheme agreement under which the farmer has complied with the obligations listed in Option A in Schedule 2 shall be at the rate per annum specified in the appropriate Column 2, 3 or 4 opposite that name for each hectare of the land. (1)(2)(3)(4)Name of nitrate sensitive area£/ha/annum where under 25% of the holding is the subject of a premium scheme agreement£/ha/annum where under 25–75% of the holding is the subject of a premium scheme agreement£/ha/annum where over 75% of the holding is the subject of a premium scheme agreement Ogbourne St. George NSA380290200Egford NSA380290200Sleaford NSA380290200Branston Booths NSA380290200Kilham NSA330265200Old Chalford NSA330265200Wellings NSA280240200Tom Hill NSA280240200Wildmoor NSA280240200Boughton NSA280240200

• Option B – conversion of arable land to grassland with grazing The payment for any land in the nitrate sensitive area named in Column 1 below which is the subject of a premium scheme agreement under which the farmer has complied with the obligations listed in Option B in Schedule 2 shall be at the rate per annum specified in the appropriate Column 2, 3 or 4 opposite that name for each hectare of the land. (1)(2)(3)(4)Name of nitrate sensitive area£/ha/annum where under 25% of the holding is the subject of a premium scheme agreement£/ha/annum where under 25–75% of the holding is the subject of a premium scheme agreement£/ha/annum where over 75% of the holding is the subject of a premium scheme agreement Ogbourne St. George NSA350260170Egford NSA350260170Sleaford NSA350260170Branston Booths NSA350260170Kilham NSA300235170Old Chalford NSA300235170Wellings NSA250210170Tom Hill NSA250210170Wildmoor NSA250210170Boughton NSA250210170

• Option C – conversion of arable land to grassland with grazing and limited application of nitrogen fertiliser The payment for any land in the nitrate sensitive area named in Column 1 below which is the subject of a premium scheme agreement under which the farmer has complied with the obligations listed in Option C in Schedule 2 shall be at the rate per annum specified in the appropriate Column 2, 3 or 4 opposite that name for each hectare of the land. (1)(2)(3)(4)Name of nitrate sensitive area£/ha/annum where under 25% of the holding is the subject of a premium scheme agreement£/ha/annum where under 25–75% of the holding is the subject of a premium scheme agreement£/ha/annum where over 75% of the holding is the subject of a premium scheme agreement Ogbourne St. George NSA27018090Egford NSA27018090Sleaford NSA27018090Branston Booths NSA27018090Kilham NSA22015590Old Chalford NSA22015590Wellings NSA17013090Tom Hill NSA17013090Wildmoor NSA17013090Boughton NSA17013090

• Option D – conversion of arable land to grassland with woodland The payment for any land in the nitrate sensitive area named in Column 1 below which is the subject of a premium scheme agreement under which the farmer has complied with the obligations listed in Option D in Schedule 2 shall be at the rate per annum specified in the appropriate Column 2, 3 or 4 opposite that name for each hectare of the land. (1)(2)(3)(4)Name of nitrate sensitive area£/ha/annum where under 25% of the holding is the subject of a premium scheme agreement£/ha/annum where under 25–75% of the holding is the subject of a premium scheme agreement£/ha/annum where over 75% of the holding is the subject of a premium scheme agreement Ogbourne St. George NSA280190100Egford NSA280190100Sleaford NSA280190100Branston Booths NSA280190100Kilham NSA230165100Old Chalford NSA230165100Wellings NSA180140100Tom Hill HSA180140100Wildmoor NSA180140100Boughton NSA180140100

Signed

In Witness whereof the Official Seal of the Minister of Agriculture, Fisheries and Food is hereunto affixed on 24th April 1990.

John Selwyn Gummer — Minister of Agriculture, Fisheries and Food

Christopher Patten — Secretary of State for the Environment — 26th April 1990

We consent,

Kenneth Carlisle — Thomas Sackville — Two of the Lords Commissioners of Her Majesty’s Treasury — 25th April 1990

Explanatory note

(This note is not part of the Order)

Section 112 of the Water Act 1989 (“the 1989 Act”) gives the Minister of Agriculture, Fisheries and Food (“the Minister”) and the Secretary of State for the Environment (“the Secretary of State”) power, acting jointly, to designate land in England as a nitrate sensitive area where they consider it appropriate to do so with a view to preventing or controlling the entry of nitrate into controlled waters as a result of, or of anything done in connection with, the use of any land for agricultural purposes.

This Order designates as nitrate sensitive areas the following areas: Ogbourne St. George NSA, Egford NSA, Sleaford NSA, Branston Booths NSA, Kilham NSA, Old Chalford NSA, Wellings NSA, Tom Hill NSA, Wildmoor NSA and Boughton NSA (article 3 and Schedule 3). The areas are defined by reference to maps which are available for inspection during normal office hours at the offices of the Ministry of Agriculture, Fisheries and Food, Nobel House, 17 Smith Square, London SW1P 3HX and at:–

Sketch maps of the areas are attached hereto.

Section 112(2) of the 1989 Act enables the Minister to enter into an agreement with the owner of the freehold interest in any agricultural land, or a person having any other interest in agricultural land who has the consent of the owner of the freehold interest, in a nitrate sensitive area, imposing obligations with respect to the management of the land.

The Order differentiates between a basic scheme agreement and a premium scheme agreement (article 2) and specifies requirements as to the practices which must be included in each type of agreement (Schedule 1 and Schedule 2 respectively).

The Order also contains provisions in relation to:

• (a) applications (article 4);

• (b) conditions of entry into agreements (article 5);

• (c) monitoring of compliance with an agreement (article 6);

• (d) payments to be made by the Minister (article 7 and Schedule 4);

• (e) recovery of payments (articles 8 and 9); and

• (f) the determination by arbitration of any question arising under an agreement and the determination of a dispute as to the economic optimum (article 8).

Footnotes

[^f00001]: 1989 c. 15. The expression “the Minister” is defined in section 189(1).

[^f00002]: 1947 c. 48.

[^f00003]: S.I. 1988/1291.

[^f00004]: 1986 c. 5.