Downs v Secretary of State for the Environment, Food and Rural Affairs

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE SULLIVAN,Lord Justice Sullivan
Judgment Date07 July 2009
Neutral Citation[2009] EWCA Civ 664,[2009] EWCA Civ 257
Date07 July 2009
Docket NumberCase No: C1/2009/0073/QBCAF,Case No: C1/09/0073

[2009] EWCA Civ 257






Before: The Honourable Lord Justice Sullivan

Case No: C1/09/0073

Department for Environment, food and Rural Affairs
Georgina Downs

MR ROBERT JAY QC (instructed by the Treasury Solicitor) appeared on behalf of the Appellant

MISS EMMA DIXON (instructed by Messrs Foresters) appeared on behalf of the Respondent

Approved Judgment

Wednesday, 4 March 2009


This is the appellant's application for a stay. The application notice seeks a stay of the judgment of Collins J which was handed down on 14 November 2008. In fact it seems to me that what is really sought is a stay of part of the order that was subsequently made by Collins J on 15 December 2008 following written representations by the parties after he had handed the judgment down.


In the hearing of the respondent's judicial review application before Collins J on 14 to 18 July 2008, the respondent made what has been described by the appellant as a full-frontal challenge to the legality and reasonableness of the appellant's policy in respect of pesticides approvals. In particular it was contended on behalf of the respondent that the appellant's policies did not comply with Directive 91/414/EC (“the Directive”). In his judgment Collins J concluded that the respondent's pesticides approvals policy was not in accordance with the Directive.


He said in paragraphs 68 to 71 of his judgment:

“68. I have no doubt for the reasons I have given that the manner in which controls on crop spraying have been applied do not comply with the obligations imposed by the Directive. It is clear and the contrary has not been suggested that the model is by no means perfect. It cannot measure local effects and is, as Mr Jay accepted, not able adequately to assess possible long term effects on health. In those circumstances, the Article 8 ground is not needed. Further, I do not believe it would provide a remedy if it stood alone. If there were compliance with the law, it is impossible to see that any interference with private life would be disproportionate.

69. It is said on the defendant's behalf that the U.K.'s approach is stricter than that of many other Member States. That may be so but is not of particular materiality. I have had to consider what the Directive requires. I have been persuaded that there are defects in the defendant's approach which contravene the requirement of the Directive. If that means that other Member States are not complying, that is a matter for them, their citizens and perhaps the Commission.

70. The result of this judgment is that the defendant must think again and reconsider what needs to be done. It is not for me to specify any particular action he needs to take. He must take steps to produce an adequate assessment of the risks to residents. In addition, he must carefully reconsider whether the existing conditions of use are adequate. The need to inform residents of intended spraying and of the composition of the pesticides to be used is I think clear. Voluntary action is not achieving this. Equally, I think there is a very strong case for a buffer zone, such as incidentally already exists to avoid spraying too close to watercourses in order to minimise the risk of pesticides entering groundwater.

71. I am inclined to the view that the appropriate remedy may be a declaration that the defendant is not acting in compliance with the Directive in the respects identified in this judgment and that he remedies his policy in the light of this judgment. But I will hear submissions on the precise terms of any order.”


The relevant parts of his order are paragraphs 1 and 2 in which it was ordered that:

“1. A declaration that the defendant is not acting in compliance with Directive 91/414/EEC in the respects identified in the judgment.

2. The defendant must reconsider and as necessary amend his policy in accordance with the terms of the judgment.”


Collins J granted the appellant permission to appeal, not on the basis that the appeal had a real prospect of success, but because of the considerable importance of the issue, both for farmers and for those such as the respondent, who are affected by the spraying.


Collins J refused the appellant's application for a stay, saying:

“I do not think that a stay is appropriate. After all, I assume that the defendant will, whatever the final outcome of this case, keep the issue under careful review. The order is to reconsider and amend as necessary. An amendment will inevitably follow reconsideration and so will not occur immediately. If a stay is desired, there must be an application to the Court of Appeal.”


The appellant duly appealed and sought both expedition and a stay. Laws LJ granted expedition but said:

“I do not grant a stay but that application can be renewed in court on notice (one Lord Justice) if, notwithstanding the grant of expedition, there is a delay of substance.”


The appeal is now fixed for four days commencing on 18 May, some eleven weeks or so from today. The appellant renews his application for a stay. The approach to be adopted in respect of applications for a stay is clearly set out in the notes to CPR 52.7. A stay is the exception rather than the rule, solid grounds have to be put forward by the party seeking a stay, and, if such grounds are established, then the court will undertake a balancing exercise weighing the risks of injustice to each side if a stay is or is not granted.


It is fair to say that those reasons are normally of some form of irremediable harm if no stay is granted because, for example, the appellant will be deported to a country where he alleges he will suffer persecution or torture, or because a threatened strike will occur or because some other form of damage will be done which is irremediable. It is unusual to grant a stay to prevent the kind of temporary inconvenience that any appellant is bound to face because he has to live, at least temporarily, with the consequences of an unfavourable judgment which he wishes to challenge in the Court of Appeal. So what is the basis on which a stay is sought in the present case?


The appellant's case is set out in two witness statements of Mr Wilson, the Chief Executive of the Pesticides Safety Directorate. The respondent's case in this respect is contained in two witness statements in reply from Miss Downs, her fourth and fifth witness statements respectively. The parties have also helpfully provided skeleton arguments and responses to those skeleton arguments.


The most up to date position is that set out in Mr Wilson's second witness statement. He identifies three matters. First of all, it is said that Ministers remain committed to their public statement that they would look again at the advantages and disadvantages of additional measures, irrespective of the outcome of the case. As I understand it, this includes, but is not limited to, reviewing actions taken in response to the Royal Commission on Environmental Pollutions' recommendations.


That process, Mr Wilson says, is in train and so the appellant does not seek a stay to prevent that process from continuing. It seems to me, therefore, that that is simply a matter of background and does not provide any basis, whether solid or otherwise, for granting a stay.


Secondly it is said that, if there are to be changes in policy, the appellant is going to need to take advice from the relevant expert committees, including the Advisory Committee on Pesticides and two Department of Health committees, the committees on toxicity and carcinogenity of chemicals in food, consumer products and environment. It is said by Mr Wilson that those committees would need to scrutinise existing policy in the light of the criticisms made in the judgment currently under challenge and give appropriate advice. That advice may culminate in changes being made to the appellant's bystander/residents model.


Mr Wilson in his second witness statement makes it clear that this complex process, as he calls it, has not been initiated. He says that if required it is likely to be time-consuming and expensive. Further consultation would be required if Ministers were minded to respond to the judgment and consequent expert advice by the promulgation of statutory instruments. He makes the point that that may well be a lengthy process and, as Collins J may well have envisaged, could not be concluded in advance of the hearing of the appeal. It is said in paragraph 13 of his witness statement that the appellant seeks a stay of the judgment to cover the steps summarised in those paragraphs. That is to say, taking advice from the expert committees as to the implications of the judgment.


I am bound to say that it does not seem to me that that could conceivably be a solid basis for granting a stay. I can well understand that from the appellant's point of view it would be more convenient not to have to initiate the process until such time as the Court of Appeal has reached a decision, but it does seem to me that there is, in effect, no plan B on the part of the appellant. Plan A is to appeal and succeed in the appeal, but in the event of that not succeeding, only then will something of any substance be done by way of a response to the judgment. It does seem to me that if that process is not even initiated until after the Court of Appeal has given judgment, there could be a very lengthy period of delay before...

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