One chicken’s manure is another man’s trash, according to High Court

A recent High Court decision has re-classified chicken manure from a by-product to waste for poultry farms in Herefordshire. We examine what led to this decision and why it provides a good opportunity for the agriculture sector to re-examine its approach to waste management.

Crossing the border of England and Wales, the River Wye is the UK’s fifth longest river, meandering through such picturesque towns as Chepstow, Monmouth, and Hay-on-Wye. It is also polluted, and the problem is getting worse.

What are the issues with the River Wye?

Historically, the River Wye was largely unaffected by pollution. Local residents were able to canoe on, and swim in, the water. Visitors may have been lucky enough to spot salmon, otters, seals, and even dolphins. Several parts of the Wye, as well as the Rivers Lugg and Clun, were also designated Special Areas of Conservation (SAC).

Over the past few years, however, the quality of the river has severely declined. Residents have complained of sludge and foul smells, with one commenting to the BBC that “we no longer wanted our children in it.” In 2023, the conservation status of the River Wye was downgraded from ‘unfavourable-recovering’ to ‘unfavourable-declining’.

What might be causing the River Wye’s pollution?

Whilst pollution from wastewater is partly to blame, the majority of the river’s problems have been linked to agriculture and the significant number of intensive poultry farms located in Herefordshire.

According to Rivercide, an investigative documentary presented by George Monbiot, an estimated 20 million chickens are farmed in the county. This produces significant amounts of poultry manure, which has high levels of phosphate. If used as a fertiliser, the phosphates and other toxins can penetrate the soils and waterways. Once in the river, these nutrients facilitate eutrophication, a process in which algal blooms proliferate, die, decompose, and rob the water of oxygen.

According to CPRE, The Countryside Charity: “The growth in the [intensive chicken farming] industry has coincided with a shocking rise in phosphate levels in the River Wye Special Area of Conservation and the River Lugg, a Site of Special Scientific Interest, and their tributaries. The last two summers we’ve seen algal blooms turning the River Wye green and smothering water plants and river beds with sludge.”

What led to the recent High Court decision?

The poor state of the River Wye has also impacted Herefordshire’s wider economy, with parts of the county subject to a housing moratorium.

In response, Herefordshire County Council (HCC) adopted a new Minerals and Waste Local Plan (MWLP) that, amongst other policies, placed new requirements on livestock units to provide waste management method statements on how both natural and non-natural wastes would be managed on and off-site.

The National Farmers’ Union (NFU) challenged this, arguing that HCC sought to control otherwise lawful agricultural methods, such as the use of manure as fertiliser, and to unlawfully extend the definition of waste in section 117(1) of the Planning and Compulsory Act 2004 and section 336(1) of the Town and Country Planning Act 1990 by reference to the Waste Framework Directive.

Is manure a by-product or waste?

A key concern for the NFU was the MWLP’s reclassification of manure as waste, rather than a by-product, arguing that manure had a purpose as soon as it was produced (mainly, as a fertiliser), and therefore should not be classed as waste.

The Judge, however, disagreed with the NFU’s arguments, highlighting that, under Article 5 of the Directive, ‘by-products’ can only be considered as such if their use will not lead to an adverse impact on environmental or human health.

Given the demonstrable harm that the use of chicken manure, and its high levels of phosphate, was having on the river, the Judge agreed that manure was ‘waste’ up to the point that it was sold or transferred to a third party. Chicken producers would, therefore, need to provide a detailed plan at the planning application stage to demonstrate that chicken manure would be disposed of safely, with full transparency on its destination and application.

What does this mean for farms and livestock units?

Although exceptions have existed in the past for the agricultural sector, it is likely that local waste management regulations will increasingly apply to farms and livestock units.

It is interesting to note that the judgment was also critical of the Farming Rules for Water (‘the FRfW’), which regulate the spread of manure on fields, stating that they were “a regulatory regime which beyond any doubt had failed to protect the environment from harm.” As such, farms and livestock units may not be able to rely on the FRfW as justification for their practices concerning manure and fertiliser in the future.

Units should use this judgment as an opportunity to review their existing waste management policies against local regulations and decide if a different approach to the use, and disposal, of manure is required.

More generally, it is worth reviewing policies to ensure that they are up-to-date and in line with the Directive, including its hierarchy of waste. For example, does the policy account for all possible waste streams present on site, including natural waste streams? How does the policy demonstrate that preventing waste is prioritised over reusing, recycling, and disposing of it? For any waste that is disposed of, is the policy transparent about how this will be done and where the waste will end up?

Given the demonstrable impact of the agricultural sector on the UK’s rivers, and the ongoing legal action that aims to hold polluters, particularly wastewater companies, to account, it is more important than ever that agricultural units review their current waste management practices, particularly concerning the use, and disposal, of manure. Getting the groundwork in now will help to protect a unit’s position – legally, financially, and reputationally – should the manure ever hit the fan.