The Ulster Farmers’ Union (UFU) and DAERA have been in court this week for a judicial review centred on a case involving former UFU president Ian Marshall.

The case surrounds a cross-compliance inspection on Marshall’s farm near Markethill in January 2012. He was found to be in breach of two statutory management requirements. The first was deemed an intentional breach for allowing farmyard run-off with effluent and manure to enter a waterway and the second was a negligent breach for not maintaining storage facilities to prevent run-off.

The case has the potential to set an important precedent in NI regarding the classification of intentional or negligent breaches of cross-compliance rules, which could allow other past cases to be reviewed.

Intentional breach penalties can range from 15% to 100% of subsidy payments but negligent breaches are much smaller, ranging from 1% to 5%.

Representing Marshall at the High Court, Hugh Mercer QC said that the intentional breach resulted in a 55% penalty of his Single Farm Payment and the negligent breach had a 3% penalty. In addition, Marshall was also fined £1,000 for pollution offences in a Magistrates’ court.

The judicial review surrounds the classification of the first breach of cross compliance as intentional. Marshall originally appealed the ruling and at the second stage review, the independent external review panel recommended that the breach be changed from intentional to negligent.

However, a letter addressed to Marshall from DAERA permanent secretary Noel Lavery in May last year stated that the breach was not being changed.

The incident began on 5 December 2011 during an inspection of Marshall’s farm by the NI Environment Agency. It was there to investigate an anonymous report that milk was being dumped in a waterway, but no evidence of this was found.

Representing DAERA in court, David McMillen QC said that during the visit, NIEA inspectors saw a concrete pipe flowing into a waterway that was contaminated with fungi and around 70m from the yard. He said Marshall was told that there was pollution and that it was most likely coming from his farmyard.

NIEA gave Marshall verbal feedback on remedial actions at the time and Marshall agreed to undertake two actions, which were restoning a hardcore area in front of a cow house and regularly sweeping the yard.

However, the main source of the pollution turned out to be mismanagement of a diverter system in Marshall’s yard that allowed effluent into the waterway. The court heard that this was not seen by either Marshall or NIEA until a cross-compliance inspection on 31 January 2012.

Marshall’s representative, Hugh Mercer QC, said that the breach was not intentional as he did not know of the cause of the issue before the date of inspection.

However, McMillen QC said that there was no evidence that Marshall tried to locate the source of the pollution during the eight-week period from the first inspection.

He said that intentional pollution was “not necessarily dumping fertiliser down a waterway”, but in this case was “failure to carry out an inspection of one’s own farm” when there continued to be a pollution incident.

In return, Mercer QC pointed out that the cross-compliance breach related to the formal inspection on 31 January only, so any evidence gathered at earlier inspections, or subsequent visits, had no relevance.

High Court Judge, Mr Justice Paul Maguire questioned DAERA’s system of having an independent review panel and then rejecting their recommendation. He said that the onus should be on DAERA to provide evidence. “It is for the Department to prove intentionality and not for Mr Marshall to do otherwise,” said Mr Justice Maguire.

At the time of going to press, it was expected that judgment would be reserved to a later date.