Rural sector update: The risks arising from the use of pesticides on farmland

In a highly complex and technical area of law, Harrison Drury partner David Edwards, and solicitor Alex Walmsley, explore the potential legal issues affecting the rural sector relating to risks arising from the use of toxic chemical pesticides.

Despite an expected tightening of standards in the use of pesticides, DEFRA announced at the start of this year that an emergency usage of a previously banned neonicotinoid pesticide would be granted. This has been met with backlash from The Wildlife Trust, who announced in January 2021, its intention to explore legal challenges against DEFRA’s decision to permit the emergency use of the pesticide.

While the usage of this pesticide would be limited solely to sugar-beet farmers (largely located on the east of England) this ongoing battle may have far-reaching consequences for the use of pesticides on farmland in general.

The government has set out an ambitious “ten point” plan to improve the natural environment, whereby the use of pesticides is expected to cut significantly to balance the needs of the environment against effective pest control management. However, the recent stance taken by DEFRA to permit the use of the previously banned pesticide, appears to contradict the government’s plan, leaving many feeling confused.

DEFRA’s draft plan is still open to public consultation and submissions are expected from the farming community, related industries, environmental and public health groups, and members of the public. For further information and to share your views, visit the website: Sustainable Use of Pesticides: Draft National Action Plan

Post-Brexit: What is the current state of UK pesticide regulation?

Prior to the UK’s departure from the EU, Chemical regulations, were previously enforced and protected under EU legislation. The EU’s framework in relation to pesticides, including but not limited to:

• The EU Biocidal Products Regulation (EU BPR)
• The Registration, Evaluation, Authorisation & restriction of Chemicals (REACH)
• The Control of Substances Hazardous to Health (COSHH)

Following the UK’s departure from the EU on 1 January 2021, an independent regulatory regime took over in the UK, which predominately aligns with the EU framework, but the UK will use its own panel of experts to determine the authorisation of chemicals and their use.

Anyone who received authorisation under the old scheme must be aware that they have 60 days from the expiry of the transition period to obtain authorisation under the UK framework. This will all be overseen by the Health and Safety Executive.

Where damage is caused by chemicals however, other regulatory schemes may be involved, depending on the type of damage and the area covered.

What is the issue with pesticides?

Since the mid-2000s, numerous studies have identified concerns about the negative effect that pesticides have on non-target organisms.

When landowners use pesticides on their property, they risk contaminating the land of others and causing damage to soil, crops, livestock, the natural environment, as well as waterways, which can lead to a number of claims including claims brought by the Environment Agency and the Health and Safety Executive.

Large-scale spraying, as used on farmland, brings an increased risk of unintentional chemical contamination to other areas. In respect of the neonicotinoids for example, only 5 per cent of the chemical actually lands in the crop with the rest being absorbed largely by wildflowers and rivers.

How can this be dealt with by private action?

Landowners should be considering what the private action risk is, should they or their neighbour use pesticides on their land which causes damage to a neighbouring property.

When referring to the unintentional application of a pesticide or herbicide to another’s land, this can be known as “pesticide drift” and in the Courts of England and Wales liability will be found where the party using a hazardous chemical which subsequently escaped, and causes reasonably foreseeable damage to the neighbouring land (Rylands v Fletcher and Cambridge Water Co Ltd v Eastern Counties Leather [1994])

Pesticide drift can become a problem if the pesticide contacts an area or a crop susceptible to the particular substance being used. Farmers and landowners should take precautions to avoid causing damage to another’s land, but, should it ever occur, we recommend taking swift legal advice.

Five steps to prevent pesticide drift:

In conjunction with the guidance issued by HSE, we advise the following:

1. Check your authorisation and ensure you only use authorised products.

Only use authorised products and always follow the instructions on the label to ensure Maximum Residue Limits (MRL) requirements are met in the domestic market where the food is grown.

If produce is intended for export, check the MRL requirements in the target markets. MRLs in Great Britain and the EU may begin to diverge over time, which might affect which pesticide products can be used on produce intended for export.

2. Read the product labels.

By law, pesticide and herbicide labels must include certain information, often including; brand name, active ingredients, registration, and application instructions.

3. Be aware of local waterways.

These include drainage ditches, wetlands and other water bodies in the vicinity of the ground to which you intend to apply pesticides. Apply the pesticide in a way that prevents the chemical from entering local waterways.

4. Be aware of neighbouring crops.

Certain plants are very susceptible to various pesticides. It may be prudent to have discussions with any neighbouring farms about the pesticide you plan to use and check how they intend to use their nearby land.

5. Keep an eye on the weather.

Do not apply pesticides when it is windy, rainy, or extremely hot. The chemical can blow or wash away from the treatment area or can volatise into a gaseous state.

The legal landscape is expected to change once again when the Environment Bill returns for parliamentary approval in Autumn this year, so we recommend that businesses in the rural sector keep up to date on the latest information.

If you have any regulatory concerns relating to the use of pesticide and herbicides, please contact Harrison Drury’s regulatory team.

Alternatively, if you are worried about the usage of pesticides on or near your land and intend to sell the land in the future, or have an ongoing dispute with neighbouring land over chemical leakage, please contact our environment, energy and utilities sector team. Both teams can be contacted by calling Harrison Drury on 01772 258 321.