R (Horvath) v Secretary of State for Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Lord Justice May,Lady Justice Arden,Lord Justice Scott Baker |
| Judgment Date | 28 June 2007 |
| Neutral Citation | [2007] EWCA Civ 620 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2006/1802 |
| Date | 28 June 2007 |
[2007] EWCA Civ 620
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
THE HON MR JUSTICE CRANE
CO19562005
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice May
Lady Justice Arden and
Lord Justice Scott Baker
Case No: C1/2006/1802
Tim Eicke (instructed by DEFRA Litigation and Prosecution Division) for the Appellant
Michael Fordham QC and Maurice Sheridan (instructed by Messrs Barker Gotelee) for the Respondent
Hearing dates: 4 May 2007
A glance at a large scale map of England shows that in many areas the countryside has a very large number of public footpaths and bridleways. Many of these run through woods or cross commons or moorland. But many others cross or run along the edge of agricultural land. Some such footpaths cross pasture. Others cross arable land. In spring and summer, you can see trodden public footpaths across the middle of cornfields.
Section 146 of the Highways Act 1980 obliges owners of land to maintain stiles, gates and similar structures across footpaths and bridleways in a safe condition and to the standard of repair required to prevent unreasonable interference with the rights of persons using the footpaths or bridleways. If the owner does not do so, the appropriate authority may carry out the necessary work and recover the reasonable cost from the owner. By section 134 of the 1980 Act, farmers are allowed to plough across footpaths or bridleways, if it is not reasonably convenient to plough their fields without doing so, but they have to restore the footpaths and bridleways afterwards to make them reasonably convenient for people to exercise the right of way. It is the duty of a highway authority to enforce these provisions.
The Highways Act 1980 applies to England and Wales, but not to Scotland or Northern Ireland—see section 345.
The Common Agricultural Policy of the European Communities has as one of its central features that farmers receive a minimum guaranteed income. They may do so whether they use their land productively or not. They may become entitled to payments under the Single Payment Scheme. The present Scheme is established under Council Regulation (EC) No. 1782/2003, the whole of which is directly applicable in all Member States. One aim is that entitlement to full payment requires compliance with rules relating to agricultural land, agricultural production and activity. The rules intend to incorporate basic standards which include basic standards of “good agricultural and environmental condition”. By Article 3, in order to qualify for full direct payments, farmers have to respect statutory management requirements and “the good agricultural and environmental condition established under Article 5”. If they do not, their payments may be reduced or, in extreme cases, they may receive no payment at all.
Article 5 of the 2003 Regulation includes the following:
“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.”
There is reference in Annex IV to avoiding the deterioration of habitats and to retaining landscape features.
The definition of minimum requirements for good agricultural and environmental condition was effected for England by The Common Agricultural Policy Single Payment and Support Schemes (Cross Compliance) (England) Regulations 2004—a less than snappy title. These have been updated by 2005 Regulations, but nothing turns on that. The standards of good agricultural and environmental condition required by Article 5(1) of the Council Regulation are set out in the Schedule to the 2004 Regulations. Paragraphs 26 to 29 of the Schedule are the subject of these proceedings and of this appeal by the Secretary of State from part of a decision of Crane J in the Administrative Court on 21 July 2006.
Paragraphs 26 to 28 are as follows:
“ Public rights of way
26. A farmer must not—
(a) without lawful authority or excuse, disturb the surface of a visible footpath, a visible bridleway, or any other visible highway which consists or comprises a carriageway other than a made-up carriageway, so as to render it inconvenient for the exercise of a public right of way; or
(b) without lawful authority or excuse, in any way wilfully obstructed the free passage along a visible highway.
27. A farmer must maintain any stile, gate or similar structure, other than a structure to which section 146(5) of the Highways Act 1980 applies, across a visible footpath or bridleway in a safe condition, and to the standard of repair required to prevent unreasonable interference with the rights of persons using the footpath or bridleway.
28.(1) Where a farmer has disturbed the surface of a visible footpath or bridleway (other than a field-edge path) as permitted under section 134 of the Highways Act 1980, he must, within the relevant period under section 134(7) of that Act, or within an extension of that period granted under section 134(8) of that Act—
(a) so make good the surface of the path or bridleway to not less than its minimum width as to make it reasonably convenient for the exercise of a right of way; and
(b) so indicate the line of the path or bridleway on the ground to not less than its minimum width that it is apparent to members of the public wishing to use it.
(2) In this paragraph, “minimum width”, in relation to a highway, has the same meaning as in Schedule 12A to the Highways Act 1980.”
Paragraph 29 contains definitions with reference to sections of the Highways Act 1980.
To a large extent, these paragraphs do no more than restate provisions already to be found in the 1980 Act. But their potential effect is different. Under the 1980 Act, an offending landowner is subject to the sanctions available under that Act. Under the regulations, an offending farmer may lose some or all of his direct payments under the Common Agricultural Policy. Furthermore, as I understand it, a farmer who incurs expense in order to comply with these requirements has to bear the cost. By contrast, it is suggested that, if the regulations did not contain these requirements, the farmer might be able to recover the cost of maintaining footpaths etc under the Common Agricultural Policy as an “agri-environment measure… above the reference level of good agricultural practices” such as is referred to in the final sentence of Article 5(1) of the Council Regulation.
The proceedings
Mr Horvath is a farmer in Suffolk who challenges by judicial review the lawfulness of these paragraphs of the 2004 Regulations. He, and I dare say many other farmers, would prefer not to be at risk of losing payments under the Common Agricultural Policy if they interfere with or do not restore visible footpaths and bridleways, or if they do not maintain stiles and gates across visible footpaths and bridleways. Conversely, he would like to be potentially eligible for payments which might include the cost he incurs.
Mr Horvath has two grounds of challenge. He says, first, that Article 5(1) and Annex IV of the 2003 Council Regulation do not enable the United Kingdom to include requirements relating to footpaths and bridleways in the 2004 Regulations because the expression “requirements for good agricultural and environmental condition” does not extend that far. Crane J thought that there were cogent arguments for the validity of these paragraphs in the 2004 Regulations. But he considered that the question was sufficiently open to argument to justify a reference to the European Court of Justice. He had noted that a Regulatory Impact Assessment in July 2004 had stated that the decision to include measures protecting footpaths and rights of way could be justified legally, but that there was a high risk of a challenge and perhaps fifty per cent chance of winning such a case.
Crane J accordingly ordered a reference to the European Court of Justice under Article 234 of the Treaty and Part 68 of the Civil Procedure Rules. The first referred question was:
“Can a Member State include requirements relating to the maintenance of visible public rights of way in its standards of good agricultural and environmental condition under Article 5 and Annex IV to Council Regulation 1792/2003?”
There is no appeal against the making of that part of the reference, although Buxton LJ, in giving permission to appeal to this court against the second question referred, to which I shall come in a moment, suggested that there was a high level of artificiality in the proceedings. The paragraphs in the 2004 Regulations did not, he observed, do more than require farmers to comply with existing domestic legislation under the 1980 Act; and he could not understand how these paragraphs were beyond the scope empowered by a Council Regulation which emphasised the need to achieve good...
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