Natural England v Andrew Jonathan Chubb Cooper

Hearing date: Tuesday 3 December 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 16 January 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

The central issue in this appeal is whether the appellant, Natural England (“NE”), has the power and standing as the regulator in relation to The Environmental Impact Assessment (Agriculture) (England) (No. 2) Regulations 2006 (SI 2006 No. 2522) (“the 2006 Regulations”) to obtain an injunction to secure compliance with the consenting regime under those regulations.

NE was established on 1 October 2006 by the Natural Environment and Rural Communities Act 2006 (“NERCA 2006”). NE succeeded to the functions of English Nature, the Countryside Commission and the Rural Development Service (“RDS”) of the Department for the Environment, Food and Rural Affairs (“DEFRA”).

The Respondent, Mr Andrew Cooper, farms 67 hectares of land at Croyde Hoe Farm, Croyde Hoe, Devon. The farm and neighbouring land is owned by the National Trust (“the NT”). On 26 August 1993 the NT granted to Mr Cooper a yearly tenancy of the farm under the Agricultural Holdings Act 1986.

The claim for an injunction relates to 30 hectares of the farm, comprising 9 fields. It is common ground that the 2006 Regulations prohibit cultivation of that land unless Mr Cooper obtains consent under reg.9 to carry out that activity. In October 2013 he applied to NE for consent but that application remains undetermined. NE says that this is because Mr Cooper has failed to provide sufficient information on the potential archaeological interest lying under the surface of the land to enable them to reach a decision on the application. NE is concerned that ploughing and cultivation of the land would damage or destroy any archaeological artefacts.

Nevertheless, Mr Cooper has continued to plough and cultivate fields within the 30 hectare area. He has not been deterred by the service of statutory notices and criminal sanctions. He maintains that the protection of archaeological remains below the surface of the land does not fall within the statutory remit of NE.

On 21 April 2023 NE issued a claim against Mr Cooper seeking injunctive relief.

On 2 May 2023 HHJ Russen KC, sitting as a judge of the High Court, granted an interim injunction restraining Mr Cooper from ploughing or working the fields, save in compliance with the 2006 Regulations. He ordered an expedited trial of the claim.

The final trial took place before the same judge on 16 and 17 November 2023, with closing submissions on 21 February 2024.

The judgment was handed down remotely on 3 April 2024. The judge decided that NE had not justified the grant of a final injunction and the claim should be dismissed. He considered that NE lacked power and standing to bring the claim for an injunction in its own name. The claim could only have been brought as a relator action with the consent, and in the name of, the Attorney General. But the judge made it plain that, but for NE's lack of standing, he would have granted a final injunction to secure compliance with the 2006 Regulations [285] – [286].

The judge adjourned the hearing for hand down so that the terms of the court's order could be considered, along with an application for permission to appeal. On 23 April 2024 the judge made a formal order dismissing the claim. He also granted permission to appeal to this court and, pending the determination of the appeal, he stayed the dismissal of the claim and continued the interim injunction granted in 2023.

Statutory framework

Natural Environment and Rural Communities Act 2006

Section 1(2) provides that NE “is to have the functions conferred on it by or under this Act or any other enactment.” The 2006 Regulations were made under s.2(2) of the European Communities Act 1972 and confer “functions” on NE. Those regulations therefore fall within s.1(2).

Section 2 of NERCA 2006 sets out the general purposes of NE. Sections 3 and 4 set out “advisory functions”. Section 5 to 8 contain “general implementation powers.” Sections 9 to 13 set out “other functions” of NE, including the incidental powers in s.13. The “functions” of a body generally refers to its powers and duties. A “purpose” is neither a power nor a duty. Instead, a purpose clause may be inserted into a statute in order to provide guiding principles for interpreting the provisions to which it applies (Bennion, Bailey and Norbury on Statutory Interpretation (8 ^th ed.) section 17.2).

Section 2 provides:

“(1) Natural England's general purpose is to ensure that the natural environment is conserved, enhanced and managed for the benefit of present and future generations, thereby contributing to sustainable development.

(2) Natural England's general purpose includes—

a. promoting nature conservation and protecting biodiversity,

b. conserving and enhancing the landscape,

c. securing the provision and improvement of facilities for the study, understanding and enjoyment of the natural environment,

d. promoting access to the countryside and open spaces and encouraging open-air recreation, and

e. contributing in other ways to social and economic well-being through management of the natural environment.

(3) …”

NE's general purpose is defined in broad terms which include “conserving and enhancing the landscape”.

The functions which are conferred on NE by Chapter 1 of Part 1 of the 2006 Act are also expressed in broad terms. For example, NE may carry out proposals (s.5), give financial assistance to any person (s.6), or enter into an agreement with a landowner about the use or management of his land (s.7), if doing so appears to NE to “further its general purpose.”

Section 12 confers on NE a power to institute criminal proceedings.

Section 13 confers incidental powers on NE:

“ 13. Incidental powers

(1) Natural England may do anything that appears to it to be conducive or incidental to the discharge of its functions.

(2) In particular, Natural England may—

(a) enter into agreements;

(b) acquire or dispose of property;

(c) borrow money;

(d) subject to the approval of the Secretary of State, form bodies corporate or acquire or dispose of interests in bodies corporate;

(e) accept gifts;

(f) invest money.”

By virtue of s.1(2) of NERCA 2006 (see [11] above), NE's functions under the 2006 Regulations fall within s.13(1).

Environmental Impact Assessment Directive

Council Directive 85/337/EEC of 27 June 1985 addresses “the assessment of the effects of certain public and private projects on the environment.” It was amended by Council Directive 97/11/EC of 3 March 1997 and Directive 2003/35/EC of 26 May 2003. By para. 1 of Annex II to the Directive, those projects include:

“(a) Projects for the restructuring of rural land holdings;

(b) Projects for the use of uncultivated land or semi natural areas for intensive agricultural purposes; …”

A member state is required by Art. 1 and Art. 4(2) to determine whether a project falling within Annex II is likely to have significant effects on the environment. If so, it must be subject to a process of environmental impact assessment (“EIA”) and a requirement for development consent, that is a decision by a competent authority entitling the developer to proceed with the project (Art. 2(1)).

There is no issue in this case about whether the UK has adequately transposed the Directive into domestic law. There is therefore no need to consider the provisions of the Directive other than part of the first recital and the sixth recital:

“…. whereas they affirm the need to take effects on the environment into account at the earliest possible stage in all the technical planning and decision-making processes; whereas to that end, they provide for the implementation of procedures to evaluate such effects;

Whereas development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out; whereas this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question;”

The UK has given effect to the Directive by a number of statutory instruments dealing with different types of project and environment. The 2006 Regulations address the agricultural projects referred to in [17] above, which fall outside the scope of planning control. But it is important to bear in mind that the issue in the present case about the scope of the 2006 Regulations in relation to sub-surface archaeological interest is relevant more widely to the other regulations which require a project to be the subject of EIA in order to comply with the Directive.

The 2006 Regulations

Mr Cooper asked the court to note that we were provided with the current version of the 2006 Regulations, rather than the version as originally enacted. He did not identify any differences between the two or explain how they could affect the outcome of this appeal. But I have considered whether any differences between the original and current versions of the regulations...