It has been reported that the option in the European Regulation 1107/2009 ("Pesticides Regulation"), which would require farmers to adhere to an "obligation before the product is used to inform any neighbours who could be exposed to the spray drift and who have requested to be informed" would not be transposed into UK law as part of its implementation. While farmers may be relieved that they do not have to notify their neighbours that they are about to spray, the notification threat is highly unlikely to disappear completely.
The results of a public consultation having been published on 15 December 2010, Defra has in March of this year published a further informal consultation, together with draft regulations, which came into force on 14 June of this year ("UK Regulations").
The most recent (March) consultation closed on 12 April 2011, but a salient element of it was article 67 of the Pesticides Regulation, which essentially requires "professional users" of plant protection products to keep records of the products used for at least three years. Further, the records must contain:
- the name of the product used;
- the time it was used;
- the dosage applied; and
- details of the field and the crop over which it was applied.
The Regulation stops short of insisting that all this information must be sent to the "competent authority" (likely to be Defra) as a matter of course, but third parties (including residents) will be able to ask Defra to provide this information, which would undoubtedly have to trigger a request of the farmer. Any failure on the farmer's part to provide the requested information would result in a £5,000 fine.
Since the Pesticides Regulation is directly applicable in the UK, the provisions of Article 67 will be incorporated verbatim into our statute book. However, Pesticides Campaigner Georgina Downs of the UK Pesticides Campaign (already disappointed by the government's failure to incorporate the prior notification provisions) is concerned that the Government and/or DEFRA will not implement the provisions of Article 67 correctly in practice. Miss Downs states:
"Given that Article 67 provides for a new legal requirement for residents to be provided with access to the spray records then the UK Government will have to comply with this provision. If it does not, then it could lead to non-compliance with the new Pesticides Regulation, and which could then result in infraction proceedings being taken against the UK, as well as further legal challenges by myself, in addition to the ongoing legal case against the Government that is currently before the European Court of Human Rights."
Turning to the mechanics of how farmers will comply, one can only hope that by the time these regulations are finally transposed into UK law, the RPA will have resolved all of its mapping issues, and farmers will be able to draw a little comfort from the fact that they might use the field reference numbers from the RPA plans of their holdings rather than having to go to the expense and trouble of commissioning a surveyor to produce plans and acreages of the fields affected by spraying.
(A version of this article by Simon Blackburn first appeared in the Solicitors Journal on 17 May 2011).