R (Horvath) v Secretary of State for Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judgment Date | 21 July 2006 |
| Neutral Citation | [2006] EWHC 1833 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No.CO/1956/2005 |
| Date | 21 July 2006 |
[2006] EWHC 1833 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice,
Strand London WC2A 2LL
Mr. Justice Crane
Case No.CO/1956/2005
Mr.Maurice Sheridan (instructed by Barker Gotelee) appeared for the Claimant.
Mr.Tim Eicke (instructed by DEFRA Legal Services) appeared for the Defendant.
Introduction
The Claimant is a farmer, the managing partner of a family farming partnership in Suffolk. He is eligible for payment entitlements in accordance with the Single Payment Scheme ("SPS") under the Common Agricultural Policy ("CAP") of the European Union. There are public rights of way over his land.
This is an application for judicial review of paragraphs 26 to 28 of the Schedule to the Common Agricultural Policy Single Payment and Support Schemes (Cross Compliance) (England) Regulations 2004 ("the England Regulations"). Those paragraphs have now been replaced by identical paragraphs 27 to 30 of the equivalent 2005 Regulations, but nothing turns on the replacement. I shall continue to refer to the paragraphs of the 2004 Regulations.
The central issue is whether the Defendant, the Secretary of State for the Environment, Food and Rural Affairs, was entitled to include provisions relating to public rights of way among the factors that may lead to a reduction in a farmer's SPS payment. The issue could affect a large number of farmers and, although I have not been provided with any figures, significant sums of money.
A second issue is whether, if the Defendant was in principle so entitled, the inclusion of such provisions in regulations for England when no such provisions were included in regulations made in Wales, Scotland and Northern Ireland, renders the regulations unlawful. It is common ground that matters relating to agriculture and to highways are within the competence of the devolved authorities in those other parts of the United Kingdom.
The Defendant did not contest the granting of permission. Davis J. ordered an Acknowledgement of Service and McCombe J. subsequently granted permission, except on the compensation claim.
There are witness statements from the Claimant and Mr.Peter W.Danks of Reading Agricultural Consultants, on behalf of the Claimant, and from Mr.David Rigal, a Senior Sustainable Agricultural Advisor to the Department for the Environment, Food and Rural Affairs ("Defra").
Both Counsel submit that the matter is clear but each invites me, if there is doubt, to refer any relevant issue to the European Court of Justice. I have borne in mind the guidance in R. v. International Stock Exchange, ex p. Else (1982) Ltd. [1993] QB 534, per Sir Thomas Bingham MR.
The Community legislation
As a result of the Mid Term Review of the CAP, the EU adopted a policy of supporting farmers' incomes by means of the SPS. The Scheme is intended to provide farmers with a minimum guaranteed income, "decoupled" from production. The entitlement is linked mainly to the size of their holding, but failure to fulfil "cross compliance" conditions may reduce or even eliminate the right to payment.
The Scheme was established by Council Regulation (EC) No. 1782/2003, which entered into force on 28 October 2003. Article 156 states that the Regulation "shall be binding in its entirety and directly applicable in all Member States".
Relevant parts of the preamble read as follows (the underlining largely follows passages particularly relied on by one or other Counsel):
"Having regard to the Treaty establishing the European Community, and in particular Articles 36, 37 and 299(2) thereof,
…
Whereas:
(1) Common conditions should be established for direct payments under the various income support schemes in the framework of the common agricultural policy.
(2) The full payment of direct aid should be linked to compliance with rules relating to agricultural land, agricultural production and activity. Those rules should serve to incorporate in the common market organisations basic standards for the environment, food safety, animal health and welfare and good agricultural and environmental condition. If those basic standards are not met, Member States should withdraw direct aid in whole or in part on the basis of criteria which are proportionate, objective and graduated. Such withdrawal should be without prejudice to sanctions laid down now or in the future under other provisions of Community or national law.
(3) In order to avoid the abandonment of agricultural land and ensure that it is maintained in good agricultural and environmental condition, standards should be established which may or may not have a basis in provisions of the Member states. It is therefore appropriate to establish a Community framework within which Member States may adopt standards taking account of the specific characteristics of the areas concerned, including soil and climatic conditions and existing farming systems (land use, crop rotation, farming practices) and farm structures.
…
(24) … it is necessary to complete the shift from production support to producer support by introducing a system of decoupled income support for each farm. While decoupling will leave the actual amounts paid to farmers unchanged, it will significantly increase the effectiveness of the income aid. It is, therefore, appropriate to make the single farm payment conditional upon cross-compliance with environmental (sic), food safety, animal health and welfare, as well as the maintenance of the farm in good agricultural and environmental condition".
Article 1 reads:
"This Regulation establishes:
- common rules on direct payments under income support schemes in the framework of the common agricultural policy …;
- an income support for farmers (hereinafter referred to as the 'single payment scheme');
… ".
Article 2 provides definitions, including:
"(c) 'agricultural activity' means the production, rearing or growing of agricultural products including harvesting, milking, breeding animals and keeping animals for farming purposes, or maintaining the land in good agricultural and environmental condition as established under Article 5".
Chapter 1 is entitled "CROSS COMPLIANCE". Articles 3 and 4, so far as relevant, read as follows:
"Article 3
Main requirements
1. A farmer receiving direct payments shall respect the statutory management requirements referred to in Annex III, according to the timetable fixed in that Annex, and the good agricultural and environmental condition established under Article 5.
…
Article 4
Statutory management requirements
1. The statutory management requirements referred to in Annex III shall be established:
—public, animal and plant health,
—environment,
—animal welfare."
…
Annex III lists a number of articles from Council Directives and EC Regulations governing the three areas referred to in Article 4. It should be noted that while some relate to farming methods, some do not: for example, under the heading "Environment" a Council Directive on the conservation of wild birds.
Article 5 is central to the present case and reads:
" Good agricultural and environmental condition
1. Member States shall ensure that all agricultural land, especially land which is no longer used for production purposes, is maintained in good agricultural and environmental condition. Member States shall define, at national or regional level, minimum requirements for good agricultural and environmental condition on the basis of the framework set up in Annex IV, taking into account the specific characteristics of the areas concerned, including soil and climatic condition, existing farming systems, land use, crop rotation, farming practices, and farm structures. This is without prejudice to the standards governing good agricultural practices as applied in the context of Council Regulation (EC) No 1257/1999 and to agri-environment measures applied above the reference level of good agricultural practices.
…".
It is appropriate to set out Annex IV in full:
" Good agricultural and environmental condition referred to in Article 5
| Issue | Standards |
| Soil erosion: Protect soil through appropriate measures | —Minimum soil cover —Minimum land management reflecting site-specific conditions —Retain terraces |
| Soil organic matter: Maintain soil organic matter levels through appropriate practices | —Standards for crop rotations where applicable —Arable stubble management |
| Soil structure: Maintain soil structure through appropriate measures | —Appropriate machinery use |
| Minimum level of maintenance: Ensure a minimum level of maintenance and avoid the deterioration of habitats | —Minimum livestock stocking rates or/and appropriate regimes —Protection of permanent pasture —Retention of landscape features —Avoiding the encroachment of unwanted vegetation on agricultural land" |
Article 6.1 provides that where the statutory management requirements or good agricultural and environmental condition are not complied with, the total amount of direct payments is to be reduced or cancelled. By 6.2, the reductions or exclusions referred to shall only apply if the non-compliance relates to
" (a) an agricultural activity, or
(b) an agricultural land of the holding, including the parcels on set aside".
Article 7 provides detailed rules for reduction or exclusion. If non-compliance is intentional, there may be total exclusion from one or several aid schemes for more than one calendar year.
Chapter 3 provides for payment entitlements. Article 43...
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